The request of the ILO to the ICJ for an advisory opinion on the right to strike: a life-saving move?
Lorenza Mola, Università di Torino
On 14 November, the International Labour Organization (ILO) requested an advisory opinion from the International Court of Justice (ICJ) on the interpretation of ILO Convention No. 87 with respect to the right to strike (see the ILO’s and the ICJ’s websites).
Beneath its technical formulation (‘Request for Advisory Opinion pursuant to Resolution Adopted by the Governing Body of the International Labour Organization at its 349th bis (Special Session)’), the move represents more than a search for a non-binding interpretation of an international treaty. As will be shown, this request is an urgent demand for solving a dispute between the non-governmental constituents of the ILO, on the right to strike, that is blocking the functioning of the Organization, through a pronouncement which is understood to be binding under ILO law.
In dramatic tones, the request of the ILO to the ICJ might be described as an attempt to get oxygen for a body whose life has been asphyxiated in the assembly organ over the last ten years or so, because of the disavowal by one group of its tripartite constituency (the Employers’) of the recognition of the right to strike under the Convention on the freedom of association. At the same time, the referral of an interpretative question to the ICJ by the Organization also exalts the paradigm of international institutions as autonomous non-State entities with international legal personality while it sheds light on the ICJ’s role, as the court is implicitly called to rescue an international institution from a self-defeating process, in one of the very few requests for an advisory opinion sought by a competent authority other than a UN organ, under article 65, paragraph 1, of the Statute of the Court (see the requests by UNESCO in 1955, IMCO in 1959, WHO in 1980 and in 1989, IFAD in 2010).
If this is the drama-setting of the instant case, let’s now revert to its technical legal terms, namely the object of the request, its legal bases, the specificities of this proceeding before the ICJ and the legal effects of the Court’s opinion.
As regards the object of the request, the question addressed to the ICJ enounces a dispute within the tripartite constituents of the ILO, as follows:
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)?
The crux of the dispute lies in the fact that ILO Convention No. 87 on the Freedom of Association and Protection of the Right to Organise (1948), like some human rights treaties, does not expressly include a right to strike. By contrast, for example, the International Covenant on Economic, Social and Cultural Rights (ICESCR) recognizes the ‘right to strike, provided that it is exercised in conformity with the laws of the particular country’ (art. 8) and the European Social Charter (ESC) includes it in the ‘right to bargain collectively’ (art. 6).
Despite the silence of some treaties, it is broadly understood that ‘the right to strike has been established in international law for decades in global and regional instruments’, as a corollary to the rights to freedom of assembly and association (UN Special Rapporteur on the rights to freedom of peaceful assembly and of association; on the right to strike in international law, Vogt; for a comparative study on standards set at the international level, Novitz). This should also be the case of ILO Convention No. 87, especially in the view of both the Committee of Experts on the Application of Conventions and Recommendations (CEACR) – i.e., the body involved in the statutory, regular monitoring procedure based on State reports – and the Committee on the Freedom of Association (CFA) (on the ILO supervisory system, van Alphen Fye and Fiti Sinclair; Zanobetti). These ILO monitoring bodies have developed a body of principles in connection to this right. As ILO Convention No. 87 is among the eight Conventions which are deemed by the ILO to express core labour standards, the right to strike should be considered as being part of the fundamental principles of the Organization which have emerged over one century of ILO normative activity and practice (see the 1944 Declaration of Philadelphia, the 1998 Declaration on the Fundamental Principles and Rights at Work and its 2022 amendment version). These latter principles and rights are to be intended as ‘inherent in membership of the ILO’, so as all members derive obligations and commitments on them, irrespective of the ILO Conventions they have ratified, and are subject to follow-up supervision by the ILO.
Although this understanding had been endorsed in the past, in 1989 the ILO’s Employers Group started to question it and since June 2012 the Group has also interrupted annual proceedings in the International Labour Conference (ILC) (for a historical appraisal, La Hovary 2013; on the institutional crisis, Maupin). In particular, the Conference Committee on the Application of Standards (CCAS) has been prevented from exercising its supervisory functions. More broadly, the Employers Group’s stance reverts to the denial of interpretative authority upon the CEACR (while recognizing the persuasive value of the body of experts’ opinions and recommendations and its technical role and moral authority, in the 2015 ILO Standards Initiative – Joint Statement of Workers’ & Employers’ Groups, Appendix I; among others, Adam, Attività normative e di controllo dell’O.I.L. e evoluzione della comunità internazionale, Giuffrè, Milano, 1993, p. 220, and La Hovary 2015 note that the ILO supervisory bodies ‘integrate’ treaty provisions and develop ‘soft law jurisprudence’, respectively).
Against the backdrop of a decade-long stalemate in the ILC and in the political resolution of the dispute, the Organization finally decided to turn to the ICJ, by relying on a complex set of norms in its Constitution, rules and practices. The legal bases and procedures for such a move have made themselves the object of a lively debate within the ILO, as emerges from most of the documents submitted by the constituents and the Office.
In light of the applicable rules on its special sessions, the Governing Body (GB) meeting in plenary on 10 November 2023 adopted a Resolution by which it endorsed the requests of the Workers’ group of 12 July 2023 – and of 36 governments (ie, the governments of the Member States of the European Union, Iceland and Norway, as well as Angola, Argentina, Barbados, Brazil, Colombia, Ecuador and South Africa), to urgently refer the dispute to the ICJ, pursuant to Article 37(1) of the ILO Constitution (see below). The GB resolution was passed by 33 votes in favour, 21 against, 2 abstentions. The organ is composed of a subset of the representatives of the three constituent groups, following a criterion of regional distribution, for a total of 56 regular members (28 government members, 14 employer members and 14 worker members). It can be assumed that the current composition of the GB (2021-2024) allowed for the required threshold majority to be met.
Earlier on the day of the adoption of the resolution, the GB had met as a ‘Committee of the Whole’ upon special arrangements, thus allowing representatives of governments that are not represented in the body to express their own views on the specific matter. A background report by the International Labour Office (the ILO’s Secretariat) had been prepared to facilitate the discussion and decision-making. It provides factual information on the ‘long-standing dispute’ between the two non-governmental groups of the ILO, traces the steps leading to the special meeting, includes a draft decision and outlines the procedure before the ICJ. Comments on the referral request were thereafter submitted by 13 governments, 16 employers’ organizations and 107 workers’ organizations, including the International Organization of Employers (IOE) and the International Trade Union Confederation (ITUC), in preparation of the meeting (see also a summary by the Office, here). Moreover, at the request of 14 regular members of the Employers’ Group (filed on 12 September 2023), another special session (149th ter) was held on 11 November. The request proposed the adoption of a Protocol to Convention No 87 by the ILC as the appropriate option available to ‘authoritatively determining the scope and limits of the right to strike in the context of Convention No 87, and thus settling the ongoing interpretation dispute’. It thus demanded the GB to urgently include a standard-setting item on the right to strike on the agenda of the 112th Session (June 2024) of the ILC. The Office prepared a document on the action required to this effect. This proposal was rejected by the GB.
The referral decision has been adopted pursuant to Article 37 (1) of the ILO Constitution, which provides that any question or ‘dispute’ relating to the interpretation of the Constitution or of any subsequent Convention ‘shall be referred for decision’ to the ICJ. By becoming a specialized agency of the UN, the ILO was authorized by the General Assembly to request advisory opinions of the Court ‘on legal questions arising within the scope of their activities (Art. 96(2) UN Charter), through Article IX(2) of the 1946 cooperation Agreement between the UN and the ILO. In line with Article IX (3) of the same agreement, the GB was delegated authority to address such a request to the ICJ, through the ILO’s General Director, by virtue of the ILC’s 1949 Resolution concerning the Procedure for Requests to the International Court of Justice for Advisory Opinions.
This is the first time that the ILO has requested an advisory opinion under Art. 37 of its Constitution after the establishment of the UN. Under the League of Nations system, six requests were made by the ILO to the Permanent Court of International Justice, but only one regarded the interpretation of a Convention (see details in Annex II of the Office’s Background report).
As regards the specificities of this proceeding, the GB referral resolution expresses the hope that the ICJ takes into consideration the ILO’s unique tripartite structure and invites not only the governments of ILO Member States, but also the international employers’ and workers’ organizations enjoying general consultative status in the ILO ‘… to participate directly and on an equal footing in the written proceedings and any oral proceedings before the Court’ (pursuant to Art. 66 ICJ Statute and Art. 105 Rules of the Court). Accordingly, the ILO Director General’s transmission of the GB resolution to the ICJ requests that the Court allows for the participation of six organizations: International Organisation of Employers (IOE); International Trade Union Confederation (ITUC); World Federation of Trade Unions (WFTU); International Cooperative Alliance (ICA); Organization of African Trade Union Unity (OATUU); Business Africa. Moreover, the referral signals that the need for an urgent answer and requests the Court to consider possible steps to accelerate the procedure, in accordance with Article 103 of the Rules of Court.
The latter two requests introduce some final remarks on the role of the ICJ advisory opinion procedure in the ILO legal system and consequently, more broadly, on the role of the ‘World Court’.
Interestingly, the Resolution of referral adopted by the GB recalls the existence of ‘a serious and persistent disagreement within the tripartite constituency’ of the ILO on the interpretation of a Convention and affirms ‘the necessity of resolving the dispute consistent with the Constitution of the ILO’. Thus, a ‘dispute’ is identified, and the decision to submit it to the ICJ for resolution pursuant to Article 37 of the ILO Constitution is justified as necessary, by noting that despite the ‘consensual decision [of the GB in March 2014] welcoming the clear statement by the Committee of Experts of its mandate’ and ‘despite protracted attempts, no consensus has been reached through tripartite dialogue’. This shows that once a dispute has arisen, an order is established between the ‘internal’ procedures based on tripartite dialogue and the involvement of the ICJ for its resolution. Thus, the instant case sheds light, by the side of the ILO, on the meaning of the provision in Article 37 that the dispute ‘shall be referred for decision’ to the ICJ.
Also, the role recognized to the ICJ in the law and practice of the ILO for the interpretation of its Constitution and subsequent Conventions depends on the legal status of its pronouncements. Contrary to the views expressed by the IOE in its Comment (at p. 6), the Office Background Report maintains that the opinion rendered by the ICJ on a referral pursuant to Article 37(1) of the ILO Constitution is binding (at p. 49, reportedly, in light of the Office’s Compilation of statements concerning the legal effect of advisory opinions requested under art. 37(1) of the ILO Constitution). This is backed by the assumption that the provision vests competence to give interpretations to the Conventions in the ICJ. In this line of reasoning, a different legal value is recognized to the pronouncement of the ILO supervisory bodies. The GB Resolution itself seems to endorse the position that the views of the expert committees do not have the force of authoritative pronouncements of law.
Overall, thus, the case appears to set the ICJ as a third and impartial guardian of the ‘constitutional order’ of the ILO (Boisson de Chazournes), when the functioning of the ILO and its system of standards is threatened by disagreement within its own tripartite constituency and its advanced internal monitoring system. The Court will have the opportunity to clarify its own role in this regard, the substantive interpretation of ILO Convention No. 87 with respect to the right to strike and, possibly, the ‘legal significance’ (Azaria) of the pronouncements of monitoring bodies for the purposes of treaty interpretation (see its Diallo judgment 2010, esp. paras 65-67; also, the ILC’s Draft conclusions on subsequent agreements and subsequent practice, Conclusion 13).