By David Doorey, Professor of Law
In a long-awaited decision, the International Court of Justice ruled on May 21 that the right to strike is protected by ILO Convention 87. The case is the result of a request filed by the ILO for an Advisory Opinion to resolve a dispute that has lingered at the ILO for over a decade. Employers decided to challenge the opinions of the ILO expert bodies that a right to strike is encompassed by freedom of association and the right to collective bargaining. I described the history of the case in this post.
The ICJ read out its decision, which I listened to. Here is the written decision. Here’s what the ICJ ruled in a nutshell.
The ICJ is guided by the rules of Treaty interpretation set out in the Vienna Convention, particularly Articles 31 and 32. That means fundamentally that the Court is to interpret C87 “in good faith in accordance with the ordinary meaning to be given to the terms of the treaty and in light of its object and purpose.”
The fact that C87 does not expressly mention a right to strike (RTS) is not determinative. Conventions need to be interpreted in context. The ICJ looked to Articles 2, 3, 8, 9 and 10 of C87, which read as follows:
Art. 2
Workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorisation.
Art. 3
Workers’ and employers’ organisations shall have the right to draw up their constitutions and rules, to elect their representatives in full freedom, to organise their administration and activities and to formulate their programmes.
The public authorities shall refrain from any interference which would restrict this right or impede the lawful exercise thereof.
Art. 8
In exercising the rights provided for in this Convention workers and employers and their respective organisations, like other persons or organised collectivities, shall respect the law of the land.
Art. 9
The extent to which the guarantees provided for in this Convention shall apply to the armed forces and the police shall be determined by national laws or regulations.
Art. 10
In this Convention the term organisation means any organisation of workers or of employers for furthering and defending the interests of workers or of employers.
The ICJ focused in on the ordinary meaning of this language, noting that the language protects a broad right of workers and workers’ organization to engage in “activities” and “programs” to advance their interests at work. The purpose and object of C87 is to achieve sustained progress and worker power and “strike” in its ordinary meaning involves a collective action by workers to advance their interests at work. Therefore, the RTS is consistent with the objective and purpose of C87.
The Vienna Convention, Art. 31 and 32, directs the ICJ to consider a variety of factors in interpreting C87. Firstly, because some countries have argued that C87 does not protect a RTS, the ICJ cannot conclude that there is “agreement” on the issue. However, the ICJ can also consider how C87 has been interpreted and how governments “subsequently” responded to those decisions. In this respect, the ILO expert bodies have interpreted C87 as encompassing a RTS consistently since the 1950s.
Moreover, while there is no single international instrument that is binding on all parties to C87 that includes an express RTS, both the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights (ICESCR) incorporate C87 and both have been interpreted to protect a right to strike. Since there is a very high degree of overlap between countries that are parties to C87 and the two Covenants, this is evidence of a common understanding that C87 protects a RTS.
Article 32 of the Vienna Convention directs the Court to consider whether its interpretation applying Article 31, that C87 encompasses a RTS, leads to ambiguity or absurd results. In this exercise, the Court can consider preparatory work in the creation of C87. The Court ruled that its interpretation does not produce ambiguous or absurd results. On the history of C87 (the travaux préparatoires), the Court noted that there was no clear agreement on whether C87 included a RTS when the Convention was being prepared. The debates centred around public officials should have a right to strike, not on the question of whether C87 protects a right to strike more generally. Therefore, the intent of the preparers of the C87 on the RTS is uncertain and unhelpful.
However, subsequent practice highly supports the view that C87 protects a RTS. A significant majority of states that are party to C87 have behaved as if C87 protects a RTS. Moreover, a large number of regional instruments also support the conclusion that freedom of association includes a RTS.
In the end, the ICJ ruled that C87 protects a right to strike. Here are the summarizing paragraphs:
- In view of the above, the Court considers that, with the exception of the travaux préparatoires of Convention No. 87, whose examination leads to an inconclusive result, the supplementary means of interpretation taken into consideration by the Court in accordance with Article 32 of the Vienna Convention on the Law of Treaties confirm the conclusion reached by it through its interpretation based on Article 31, namely that the right to strike is protected under Convention No. 87.
- In light of the foregoing, the Court concludes that, in accordance with the customary rules of interpretation reflected in Articles 31 and 32 of the Vienna Convention on the Law of Treaties, the right to strike is protected under Convention No. 87.
- The Court’s conclusion that the right to strike is protected by Convention No. 87 does not entail any determination on the precise content, scope or conditions for the exercise of that right.
What this Means for Canada
Canada ratified C87 in 1972, thereby pledging to ensure that the rights in C87 are protected in Canadian labour laws. C87 has, since the 1950s, been interpreted to encompass a right to strike within the meaning of freedom of association and the right to collective bargaining. In 2015, the Supreme Court of Canada, consistent with Canada’s pledge to protect rights enshrined in C87, ruled that freedom of association in Section 2(d) of the Charter also encompasses a right to strike as an “essential part of meaningful collective bargaining.”
The ICJ decision confirming that C87 includes a right to strike legitimizes the SCC’s 2015 decision in SFL, The argument from some anti-strike quarters in Canada that a “rogue” “liberal” SCC invented a right to strike has been confirmed as hogwash. Canadian governments long ago pledged support for the conclusion that freedom of association includes a right to strike, a conclusion that has now been confirmed by the International Court of Justice. The decision comes at a time when Canadian governments have increasingly demonstrated hostility towards a right to strike. This illiberal movement now runs directly counter to Canada’s international human rights commitments.