New Legal Report: Right to Strike Backed by International Law
3 June 2014 Human and trade union rights, Right to Strike
A new 122-page ITUC legal report, confirming that the right to strike is protected under international law, has been released today as employers try to overturn decades of jurisprudence at the International Labour Organisation.
Employer representatives at the ILO are continuing their efforts to strip back ILO Convention 87 on Freedom of Association, which guarantees workers the right to take strike action, as the UN agency holds its 103rd International Labour Conference in Geneva this month.
Update 2015: Stand up for the right to strike on 18 February
Feb 4, 2015
IndustriALL is urging all affiliates to participate in the 18 February 2015 global day of action in defence of the right to strike. This global day of action was called for by the International Trade Union Confederation (ITUC).
It is a response to unprecedented attacks by employers and governments against both the right to strike and International Labour Organisation (ILO) defense of that right.
“The right to strike is an essential element of freedom of association and collective bargaining. Unions will stand up on 18 February to defend this fundamental right around the world against attacks from employers and governments,” said IndustriALL General Secretary Jyrki Raina.
For much of its near-100 year history, the ILO has supervised the application of ILO Conventions and Recommendations with the full support of the tripartite constituents – workers, employers and governments. However since 2012 the Employers’ Group of the ILO has attacked this system including through challenging the right to strike.
IndustriALL supports the Workers’ Group of the ILO in calling for the referral of this dispute to the International Court of Justice for an advisory opinion. However the Employer’ Group and some governments blocked this referral at the ILO Governing Body in November 2014. Instead, a tripartite meeting was scheduled for 23-25 February 2015 to discuss the matter further.
The prolonging of this dispute has an impact outside the walls of the ILO. For instance the Turkish government’s ban last week of the metalworkers’ strike in Turkey cannot be effectively challenged at the ILO while the current deadlock persists.
“The outcome of this dispute within the ILO will be felt in workplaces around the world. We need to take action in our countries and demand that striking continue to be recognized as a fundamental, global right,” said Raina.
Unions can participate in the 18 February global day of action in a number of ways:
– Lobbying of governments that do not support referral of the matter to the International Court of Justice (Algeria, Angola, Bangladesh, Botswana, Cambodia, Chad, Ethiopia, Ghana, India, Indonesia, Japan, Jordan, Kenya, Korea, Lesotho, Mali, Mauritania, Pakistan, Russia, Tanzania, Thailand, USA, Zimbabwe)
– Protests outside offices of these governments
– Public protests against employers’ organizations
– Communications to members explaining the dispute
– Social media actions
Please inform firstname.lastname@example.org of what actions you take on 18 February 2015.
Sharan Burrow, ITUC General Secretary, said from the ILO Conference,
“Employers have been holding the ILO system to ransom, trying to discard more than 50 years of international law by removing the guarantee of one of the most fundamental human rights.
ILO standards are increasingly important as benchmarks in international trade and investment agreements as well as guidelines for responsible business, and ultra-conservative employer groups want to remove any real meaning from them.
The ITUC and its member organisations are determined to see this challenge off and ensure that workers everywhere cannot simply be forced to keep working when their bosses refuse to ensure fair pay and dignity and safety at work.”
As the ITUC’s new Global Rights Index shows – see link, the right to strike is frequently restricted in law and violated in practice around the world. In Cambodia, employers even recently called on the government to denounce ILO Convention 87, while bringing lawsuits against union that took to the streets to protest against poverty wages in the garment industry.
“The employers’ arguments at the ILO are legally unfounded. I am confident that the ITUC’s case, set out in our new report, would prevail before any international tribunal,” said Burrow.
It is worth downloading and saving and reading the ILO and The Right to Strike the ITUC Legal Report
This brief establishes that the right to strike is enshrined in ILO Convention 87, as well as within the broader international legal framework.
Indeed, it can be said that the right to strike is now customary international law.
The supervisory system of the ILO was correct in observing that the right to strike exists, and acted within their constitutional mandate and in conformity with the rules of treaty interpretation in so holding. Were the matter to be considered by the ICJ it is submitted that the latter should defer to the well-reasoned views of the ILO supervisory system, and in particular the Committee of Experts, and find that C87 protects the right to strike.
In addition to the legal reasoning herein, the ICJ should also support the observations of the ILO for policy reasons.
A finding contrary to the decades-long uncontested “jurisprudence” of the supervisory system would throw it into complete disarray and dispel any legal certainty or coherence upon which the tripartite constituents rely.
The Committee of Experts in particular would emerge as a severely weakened body whose observations would be perpetually open to question.
It would also serve to undermine the instruments and jurisprudence of other intergovernmental institutions as well as regional and national courts that have relied on the ILO for guidance. Further, an opinion in the negative would upend industrial relations worldwide, opening a door for governments to (further) restrict or limit the right to strike – as the matter would be perceived to be one for national law only. Employers would have an enormous and unforeseen advantage over labour, as collective bargaining would essentially become a dead letter.
Dated April 2014
To access the ITUC Global Rights Index.