By David Doorey, Professor of Law, York University
UPDATE: International Court of Justice rules that ILO Convention 87 Protects a Right to Strike. See my summary here.
On Thursday, April 21, the International Court of Justice will announce its long-awaited decision on a referral submitted by the International Labour Organization on the question of whether a “right to strike” is recognized in international law. This decision is huge in labour law and it could eventually influence the trajectory of Canadian labour and constitutional law. I will post a summary of the decision, but here is a primer on the case for a Canadian audience.
The Right to Strike Under ILO Convention 87
ILO Convention 87 (Freedom of Association and Protection of the Right to Organize Convention) was adopted 1948. Canada ratified C87 in 1972, which means in essence that Canada committed to implementing the standards in C87 within Canadian law.
C87 includes a collection of rights and freedoms that comprise the substance of freedom of association, but it does not include an expressed “right to strike”.
However, the ILO’s supervisory bodies, including the Committee on Freedom of Association and the Committee of Experts, since at least the 1950s, have treated the right to strike as an “intrinsic corollary” of the right of association protected by C87. In other words, although the right to strike is not expressly listed in C87, it is protected nonetheless because the right to strike is an essential tool by which workers obtain the power necessary to engage in collective bargaining, which is the entire point of C87. Here’s a good discussion of the development of the right to strike under ILO law written by a former Director of the ILO.
Canada and ILO Law
In 2007, in BC Health Services, the Supreme Court of Canada (SCC) ruled that Section 2(d) freedom of association in the Canadian Charter protects a right to collective bargaining. In that decision, the SCC wrote that s. 2(d) freedom of association “should be presumed to provide at least as great a level of protection” as international instruments that Canada has ratified (para. 70, 79).
That statement led to speculation that the SCC would eventually also recognize that s. 2(d) FOA protects a right to strike, since (1) Canada long ago ratified C87 and (2) C87 had for 50 odd years been interpreted to protect a right to strike.
Sure enough, in its 2015 decision in Saskatchewan Federation of Labour, the SCC did as anticipated and recognized a right to strike as an essential element of s. 2(d) FOA. In its reasons, the SCC ruled that the right to strike is an “indispensable” component of meaningful collective bargaining. In its reasons, the SCC noted that C87 has been interpreted to protect a right to strike:
Supreme Court of Canada, SFL Decision (2015): other sources tend to confirm the protection of the right to strike recognized in international law. Canada is a party to the International Labour Organization (ILO) Convention (No. 87) concerning freedom of association and protection of the right to organize, ratified in 1972. Although Convention No. 87 does not explicitly refer to the right to strike, the ILO supervisory bodies, including the Committee on Freedom of Association and the Committee of Experts on the Application of Conventions and Recommendations, have recognized the right to strike as an indissociable corollary of the right of trade union association that is protected in that convention: … Striking, according to the Committee of Experts, is “one of the essential means available to workers and their organizations for the promotion and protection of their economic and social interests”.
The right to strike, under both ILO law and under s. 2(d) of the Canadian Charter is not absolute. Some employees who perform true essential services (police, judges, military, doctors, etc.) can be excluded from the right to strike and conditions can be placed on the right as well (such as notice requirements, exhaustion of mediation, mandatory ballots, etc.), as long as the conditions do not unreasonably prevent workers from exercising their right to strike.
Laws limiting the right to strike in Canada have been upheld by the courts even after the 2015 SFL decision. See Ontario Public Service Employees Union v. Ontario (Attorney General), 2026 ONCA 74 (back to work legislation in colleges dispute violates freedom of association, but is “saved” by s 1 of the Charter as a reasonable restriction on the rights to collective bargaining and strike). However, the fact that s. 2(d) protects a right to strike means that governments are required to explain and justify why the ban on strikes is necessary to achieve some overriding public need. Before the SCC recognized a constitutional right to strike, governments could ban any strike, any time, without any need to justify why it was doing so. The need for governments to balance the right to strike against other pressing public concerns is the fundamental outcome of recognizing a constitutional right to strike.
The Case Before the International Court of Justice
Despite a half century of ILO commentary and jurisprudence recognizing a right to strike within the scope of C87, the employer constituency (supported by a handful of governments) has argued for a long time that the absence of an expressed right to strike in C87 means that no such right is protected and that the ILO’s supervisory bodies were without authority to expand upon the clear language of C87. You can read the full submission of the International Organization of Employers arguing that C87 does not protect a right to strike here.
To finally address this lingering disagreement within the ILO, the ILO Director-General and the Worker Vice-Chairperson submitted in July 2023 a formal request for an Advisory Opinion from the International Court of Justice (ICJ) on two questions:
1. 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)?
2. Is the Committee of Experts on the Application of Conventions and Recommendations (CEACR) of the ILO competent to:
(i) determine that the right to strike derives from the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and
(ii) in examining the application of that Convention, specify certain elements concerning the scope of the right to strike, its limits and the conditions for its legitimate exercise?
In fall 2025, the ICJ heard arguments from worker, employer, and government constituency on the two questions. Canada’s submission is here. Canada essentially summarized the existing law regarding the right to strike in Canada, noting that there is a constitutional right to strike that is not absolute. Canada noted that looks “forward to the ICJ’s advisory opinion on whether the right strike of workers and their organizations is protected under C87.”
What Can the ICJ Decide?
The ICJ could:
Option 1: Affirm the approach taken by the ILO supervisory bodies and conclude that C87 protects a right to strike as developed by the supervisory bodies.
Option 2: Rule that C87 does NOT protect a right to strike and that the ILO acted beyond its authority in implying a right to strike should be read into C87.
Option 3: Rule that C87 protects some form of a conditional right to strike that is not absolute, not specifically bound to the exact details of the ILO’s “case law” and that is context specific and adaptable to national standards and custom, essentially granting nations some flexibility to protect some reasonable form of a right to strike.
What Does the ICJ’s Decision Mean for Canadian Labour Law and the Right to Strike in Canada?
In the immediate term, the ICJ decision will not have any direct impact on Canadian strike or constitutional law. The ICJ’s decision is not directly binding on Canadian governments.
In the longer term, particularly if the ICJ adopts Option 2 (C87 does NOT protect a right to strike), expect to see the ICJ decision creeping into legal and policy arguments in at least three ways:
- Employers and governments defending laws that restrict the right to strike will argue that the ICJ’s ruling means that there is no right to strike recognized in international law and that this should cause Canadian courts to revisit the SCC’s decision in SFL. Since the SCC expressly relied on international law in support of its ruling in SFL, a decision by the ICJ that there is no international law right to strike weakens the foundation of the SFL reasoning.
Whether Canadian courts would be persuaded by that type of argument is to be seen. Certainly an ICJ ruling rejecting an international right to strike would not undermine the core finding of the SCC in SFL that “The right to strike is not merely derivative of collective bargaining, it is an indispensable component of that right.” (para. 3). It’s hard to see how a right to strike could “indispensable” to collective bargaining one day and then not so the next. Then again, if I am a judge who disagrees with the SFL decision, an ICJ decision rejecting a right to strike would be useful ammunition in a frontal attack at SFL’s decision that s. 2(d) guarantees a right to strike.
- Employers and government will argue that, even if the ICJ decision does not lead Canadian courts to reject a constitutional right to strike under s. 2(d), the ICJ’s reasons should nevertheless be considered in Section 1 analysis in Charter cases. In particular, the argument might be made that an ICJ finding that there is no international right to strike somehow dillutes the importance of the right to strike in the application of the proportionality test in assessing whether a restriction on the right to strike is justified under Section 1. “Sure, the right to strike is important to collective bargaining, but it’s not that important”. That sort of argument.
- Governments inclined to use the “notwithstanding clause” in the Charter to override the Charter right to strike might point to an ICJ decision as a reason why using the clause is not a big deal. An ICJ decision rejecting a right to strike would neuter the argument that use of the notwithstanding clause to quash the right to strike amounts to a violation of international human rights laws. Governments inclined to use the NWC in this manner probably don’t care that much about such arguments, but the appeal to international human rights law does have some emotive appeal to a portion of the Canadian public.
Frankly, I would be surprised if the ICJ rules that C87 does not protect a right to strike at all. Such a ruling would amount to a stunning rejection of global decision-making and normative modeling by a highly respected tripartite institution spanning more than a half-century. Then again, I have been wrong before.
I will summarize the decision on LawofWork.ca after its released.
David Doorey