The right to strike is under attack around the world, including in the United States. Labor strikes are currently prohibited or restricted in the majority of countries.
Now, in a 43-page landmark Advisory opinion On May 21, the International Court of Justice (ICJ, or World Court) decided that the right to strike is protected under the International Labor Organization (ILO) Convention. Convention No. 87 on freedom of association and protection of the right to organize.
“At a time when labor organizations face sustained attacks around the world, this opinion reaffirms that the freedom to block one’s work is not a privilege granted by the powerful, but a fundamental human right grounded in international law,” AFL-CIO President Liz Schuler said in a statement. statement.
the International Labor Organization It is the United Nations agency that sets global labor standards. Its membership includes 187 countries and has adopted 191 conventions since its founding in 1919. The International Labor Organization considers Convention No. 87 one of its 11 conventions. Basic agreements.
In 2023, the ILO asked the International Court of Justice to settle a case Internal conflict On whether Convention No. 87 gives workers the right to strike, which is not specifically addressed in the agreement. Although ICJ advisory opinions are not legally binding, many courts accept them as authoritative legal decisions.
The ICJ ruled in its 10-4 opinion that strike “is one of the principal activities undertaken by workers and their organizations and the instruments used by them to promote their interests and improve working conditions, thus ensuring the effective exercise of freedom of association protected under Convention No. 87.”
The court found that “protecting the right to strike is included in the protection of freedom of association stipulated in Convention No. 87.”
To reach this conclusion, the Court considered provisions in two 1996 covenants containing the relevant rules of international law regarding the right to strike. Both refer to Convention No. 87.
Article 8, paragraph 1 (d) of International Covenant on Economic, Social and Cultural Rights The International Covenant on Economic, Social and Cultural Rights explicitly protects the right to strike, if exercised in accordance with domestic laws.
Article 22, paragraph 1 of International Covenant on Civil and Political Rights (The International Covenant on Civil and Political Rights) provides for the right to freedom of association. The International Commission of Jurists noted that for more than 25 years, the Human Rights Committee – which monitors the implementation of the International Covenant on Civil and Political Rights – has considered the right to strike to be included in the protection of freedom of association.
Given the high degree of overlap between states parties to the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights, and Convention No. 87, the International Court of Justice determined that there is a common understanding among them regarding the right to strike. The Court thus concluded that “an interpretation that takes into account the relevant rules of international law contained in the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights indicates that the protection of the right to strike is included in the protection of freedom of association enshrined in Convention No. 87.”
There is no right to organize without the right to strike
“For generations, working people have understood a simple truth: the freedom to join a union means nothing if you can’t withhold your work when employers refuse to listen. Now, the world’s highest court has affirmed that truth.” He said Geoffrey Vogt, Director of International Lawyers for Workers’ Assistance (a light) Network, which issued a call to the International Labor Organization to refer this case to the International Court of Justice.
Schuller said in her report that the ICJ’s decision “confirms decades of case law and what workers around the world know: there is no right to organize and collective bargaining without the right to strike.” statement. “When workers are prevented from taking collective action at work, they cannot stand up for their rights and demand the workplace conditions and contracts they are entitled to. The freedom to join a union becomes an empty formality.”
“This is an important day for the ILO [ILO]And its continued importance in the world of work. However, the importance of this view extends beyond the institutional context in Geneva statement.
The ICJ’s advisory opinion came “at a moment of intense pressure on the international labor rights system,” ILAW male. “Around the world, the right to strike is under constant attack – through restrictive legislation, expansive judicial interpretation of essential services, the criminalization of union activity, and the use of dismissals, injunctions, and claims for damages to deter collective action.”
Legal restrictions The right to strike is increasing. In 2022, strikes were banned or severely restricted in 129 of the 148 countries included in the report. International Trade Union Confederation (International Trade Union Confederation), one of six organizations in consultative status with the Governing Council of the International Labor Organization.
The ITUC, which represents 191 million workers in 169 countries and territories, is dedicated to trade union democracy and independence. It has regional organizations in Africa, Asia and Latin America. The ICJ ruling is “important not only for workers and trade unions, but also for responsible governments and companies,” according to the ITUC. He stressed.
This decision “will serve as a powerful interpretive tool before constitutional courts and national labor courts, before regional human rights bodies, and before ILO supervisory bodies.” male. “It strengthens the hand of every worker and union that challenges the strike ban, the broad designations of essential services, the criminal sanctions against strikers, the ban on solidarity and political strikes, and the dismissal and blacklisting of workers who exercise this right.”
The ruling will affect tens of millions of workers
In October, 18 countries and five international organizations, including the International Labor Organization, made oral presentations. certificate Before the International Court of Justice, other countries submitted written contributions. The majority of participants supported the right to strike guaranteed in most European countries.
Harold Koh, who represented the International Trade Union Confederation (ITUC) before the International Court of Justice, He said The judges considered that the case “will affect the real rights of tens of millions of workers around the world.” If the court rules that the convention does not protect the right to strike, Koh warned that “national employer groups will challenge the right to strike from country to country, focusing first on countries with compliant courts, weak civil societies and ineffective media.”
Geoffrey Vogt worked with the legal team of the International Trade Union Confederation (ITUC) on the briefs and oral arguments submitted to the International Court of Justice. Vogt’s co-authored book, The right to strike in international lawIt provided a legal roadmap for the case.
Vogt said Truthout “The written view of the United States (under the Biden administration) was to support the right to strike, albeit on narrower grounds than we argued. When the Trump administration came in, they withdrew the Biden-era brief but fortunately they did not show up for oral arguments and took the opposite view.”
Vogt added: “The decision deals with the right to strike in the abstract – is it protected by the agreement – but it does not address the methods.” The court books Its “conclusion that the right to strike is protected under Convention No. 87 does not entail any determination of the content, scope or specific conditions for exercising this right.”
“This was a conscious decision,” Vogt noted. “We did not want the court to try to define the scope, especially since we believe that this is the appropriate role of the ILO supervisory regime.” “The International Court of Justice gave great weight to the views of the supervisory system, which is useful,” Vogt said. Although the ILO has supported secondary strikes, where workers strike in solidarity with other workers at a different employer, the ICJ decision did not express its opinion on this specific issue.
The right to strike in the United States
“The right to abstain from work, which is inherent in the right to strike, belongs to all workers, but it has been restricted,” said Jane Mirer, a private sector labor lawyer who works with the International Labor Rights Commission. Truthout. “Many unions have agreed never to strike while the collective bargaining agreement is in effect.”
Most private sector workers in the United States have the right to strike under the strike law National Labor Relations Act (NLRA). Employees, including international and undocumented workers, He cannot be fired or disciplined To participate in a legal strike.
“Persons exempt from the National Labor Law, such as agricultural and domestic workers, are not restricted in the right to strike but have no protection against layoffs if they go on strike and no ability to prevent such retaliation,” Merer added.
Some countries have their own laws that grant protection Domestic workers and 14 states Ensuring collective bargaining rights for farm workers.
Railroad and airline workers are not covered by the NLRA, but they are subject to… Railway Labor Lawwhich has many restrictions on the right to strike.
In recent years, Congress and the courts have done just that Narrowed down Definition of “protected concerted activity” under the NLRA. Union membership declines. However, there are strikes in the United States more By nearly 50% in 2022, according to the Economic Policy Institute.
In 2023, the US Supreme Court weakened legal protections for strikes Glacier Northwest, Inc. Against the International Brotherhood of TruckersThis makes it easier for employers to sue unions in state courts. Only Justice Ketanji Brown Jackson dissented, writing: “The right to strike is fundamental to American labor law.” I noticed:
Workers are not indentured servants, obligated to continue working until any planned cessation of work is as painless as possible for their masters. They are employees whose collective and peaceful decision to prevent their work is protected by law [National Labor Relations Act] Even if this results in economic damage.
Protections provided by the NLRA to private sector workers It does not extend to the public sector employees. “Public employees in the United States have been prevented from striking in several ways,” Mirer said.
Federal workers are Legally prohibited From beating. Thirty-six states to forbid Public sector workers go on strike. Three other states that have not addressed the issue are likely to ban public sector strikes as well. In the twelve states where strikes are not illegal per se, various preconditions must be met before workers can participate in strikes.
The World Trade Union Confederation, which played a decisive role in drawing up Convention No. 87 in 1948, Clap International Court of Justice decision:
[I]It is clear that the existence of a militant, class-oriented trade union movement is the fundamental, decisive and indispensable factor in ensuring that the right to strike, as well as agreements, collective bargaining, labor laws and workers’ achievements, are not just empty words on paper but are implemented in practice. The WFTU reiterates its call to struggle in every country, sector and workplace to protect the sacred right to strike in practice.
“It is up to workers and their organizations to build on the ICJ’s decision to ensure that the right to strike can be an effective tool for building workers’ power,” Mirer said.
This was the article Originally published In Truth Out
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