Dr. Atul Alexander | December 2, 2025
The International Court of Justice (ICJ) commenced its hearing on an advisory opinion pertaining to the right to strike under the Freedom of Association and Protection of the Right to Organise Convention, 1948 (Convention 87). The advisory opinion presents an opportunity to address the longstanding deadlock over whether the right to strike stems from Convention 87 and whether the Committee of Experts on the Application of Conventions and Recommendations (CEACR) is competent to determine that the right to strike is an integral aspect of the freedom of association recognized in Convention 87. Whereas the employers’ group contends that CEACR competence is limited to monitoring the application of the Convention, rather than interpreting it.
Broadly speaking, Convention 87 provides the workers and employers with the right to form and join organizations of their own choosing without prior authorization. The International Labor Organization (ILO) supervises the implementation of Convention 87 and other labor treaties by member states. The ILO is unique among the U.N.’s specialized agencies because it has a tripartite structure where governments, employer’s organizations, and worker’s groups are represented in a 2:1:1 ratio. The CEACR is part of the ILO’s supervisory framework established in 1926.
One of the key issues the ICJ will need to decide is what methodology it will deploy to interpret Convention 87. The disagreement in terms of interpretation is pronounced. On one hand, the employers’ group’s primary contention is that interpreting Convention 87 under Articles 31 and 32 of the Vienna Convention on the Law of Treaties (VCLT) would confirm the drafters’ intention to exclude the right to strike, since the Convention does not explicitly refer to such a right. They also question the legitimacy of the CEACR interpreting the Convention, arguing that the CEACR is merely a technical body which is not competent to supervise or adjudicate these issues. On the other hand, the workers’ group favors a dynamic interpretation which considers the object and purpose of Convention 87, which they argue would recognize the right to strike as an integral part of the convention.
In this post, I argue that the ICJ should adopt a Pro Homine principle in interpreting Convention 87.
The Pro Homine principle applies to Convention 87
The Pro Homine principle is a vital component of treaty interpretation that gained prominence with the advent of human rights treaties. The principle prioritizes selecting the most beneficial interpretation and application of norms for individuals. While this principle was developed in the realm of human rights law, it applies to the labor law regime because labor rights are recognized as part of human rights. The ILO was established in 1919 and its international labour standards set forth the aspirations that were eventually expressed in the UN Charter and Universal Declaration of Human Rights, as:
“Faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and determination to promote social progress and better standards of life in larger freedom.”
The clearest iteration of this connection comes from a joint statement, issued by the ILO’s CEACR and the chairs of the UN Human Rights Treaty Bodies, which states that “integrating human rights and international labour standards into economic and legal policy frameworks is critical to reducing inequalities and creating an environment conducive to more equitable and inclusive economic development.”
Moreover, Article 8(1)(d) of the International Covenant on Economic, Social and Political Rights (ICESCR) addresses the right to take collective action, which protects the right to strike, provided it is exercised “in conformity with the laws of the particular country.” Furthermore, Article 8(3) states that nothing in Article 8 “authorizes State parties to [Convention 87] to take legislative measures that would prejudice . . . the guarantees provided for in that Convention.”
Additionally, the European Social Charter (ESC) recognizes the right to establish trade unions and to undertake collective action under Article 6(4). The European Court of Human Rights (ECtHR), recognizes the right to strike as one of the elements of freedom of association protected by Article 11 of the European Convention of Human Rights and Fundamental Freedoms in Enerji Yapi-Yol Sen v. Turkey. In that case, the ECtHR ruled that the Turkish government violated Article 11’s guarantee of freedom of association when it issued a circular forbidding public sector employees from participating in a strike scheduled by the Federation of Public sector Trade Unions and imposed penalties on members who disobeyed. Therefore, the practice of the court and several international treaties indicate that labor rights are an integral part of the human rights corpus.
Right to Strike: VCLT and the Pro Homine Principle
The Pro Homine principle finds resonance within the Vienna Convention on the Law of Treaties (VCLT) which provides the toolkit for treaty interpretation, including treaties related to specialized regimes like labor law. In the context of the right to strike, the VCLT assumes additional significance because there is no consensus between the employers’ and workers’ groups on its status.
First, Article 31(3)(c) of the VCLT provides that when interpreting a treaty, one must consider “any relevant rules of international law applicable in the relations between the parties.” This includes subsequent practice which can be derived from treaty bodies and supervisory agencies of international organizations. In the sphere of labor law, the supervisory bodies are the CEACR and the Fact-Finding and Conciliation Commission, both hold that the right to strike is protected by Convention 87.
The CEACR has repeatedly held that the right to strike is protected by Convention 87. In its General Survey of 1959, the CEACR asserted that “the prohibition of strikes by workers other than public officials acting in the name of the public powers . . . may run counter to Article 8, paragraph 2” of Convention 87. Subsequently, in 1983, the Committee reiterated that the right to strike is essential to protect social and economic interests. Finally, in 2012, the Committee reiterated that Articles 3 and 10 of Convention 87 support the right to strike as an aspect of freedom of association. Article 3 provides free choice for workers to choose an action to defend their interests. Article 10 states that an ‘organization’ means an organization of workers or employers to defend their interests. The Committee’s views are echoed by the Committee on Freedom of Association.
Furthermore, two cases decided by the Fact-Finding and Conciliation Commission have recognised that the right to strike is part of the freedom of association. The first case involved a breach of trade union rights by Japan. The Commission’s report in that case stated that: “…where strikes by workers in essential services or occupations are restricted or prohibited, such restriction or prohibition should be accompanied by adequate guarantees to safeguard to the full the interest of the workers.’’
In the second case involving infringements of trade union rights by South Africa, the Commission acknowledged: ‘…the basic principle that the right to strike is one of the essential means available to workers and their organizations for the promotion and protection of their economic and social interests.’
Second, Articles 31 and 32 of the VCLT provide the default rules for interpretation when the treaty does not specify its own. The ICJ has observed that “according to customary international law as expressed in Article 31 of the [VCLT], a treaty must be interpreted in good faith in accordance with the ordinary meaning to be given to its terms in their context and in light of its object and purpose.” The language of Article 31 reflects a Pro Homine Principle according to Alejandro Rodiles, since it is intuitive and tautological that:
“it is the object and purpose of every human rights treaty to grant the broadest possible protection to each of the rights it contains, and that everything else would run counter to their very normative function.’
Right to strike: A good-faith interpretation of Convention 87’s object and purpose
Finally, the references to good faith and the object and purpose of the treaty in Article 31(1) of the VCLT establish that Convention 87 contains the right to strike even if it is not explicitly mentioned in the text. Moreover, the Committee of Experts observed that:
“the terms of Convention must be interpreted in the light of its object and purpose. While the Committee considers that the preparatory work is an important supplementary interpretative source when reviewing the application of a particular Convention in a given country…”
Several provisions of Convention 87, such as Articles 3 and 10, support a right to strike. Article 3 states that “…workers’ and employers… have the right…to organise their administration and activities and to formulate their programmes.” Article 10 defines an organization as an “organization of workers or employers for furthering and defending the interests of workers or of employers.”
Additionally, the International Law Commission’s Guide to Practice on Reservations to Treaties (2011) states that the object and purpose should be interpreted in light of the preamble. The preamble of Convention 87 recognizes:
“the principle of freedom of association to be a means of improving conditions of labour and of establishing peace.”
Taken together, these provisions explicitly endorse the right of workers to organize. A good-faith interpretation of these provisions implies there is a right to strike in Convention 87.
Conclusion
The ICJ should apply the Pro Homine Principle in interpreting labour rights, considering its nexus with human rights and the language of VCLT. Additionally, the ICJ’s advisory opinion would be significant because it would clarify the method for interpreting Convention 87 vis-à-vis the VCLT and supervisory bodies like the CEACR.