ICJ advisory opinion affirms right to strike; South Africa welcomes ruling

The International Court of Justice has issued an advisory opinion finding that the right to strike is an inherent element of the International Labour Organisation’s Convention on freedom of association, a development South Africa has publicly welcomed.

What the court said

The advisory opinion, delivered in May, confirms that the right to withdraw labour forms part of the protections under Convention No 87, according to reports of the ruling. The ICJ’s interpretation is advisory and non-binding but is described as carrying significant legal weight for international labour law.

South Africa’s response

In a statement following the court’s opinion, Employment and Labour Minister Nomakhosazana Meth said the decision reinforces South Africa’s constitutional guarantee of the right to strike.

“At the domestic level, the decision reaffirms SA’s constitutional commitment to protect the rights of workers.”

Meth also said the ruling affirmed a long-held principle among workers’ rights advocates that the ability to withdraw labour is essential to genuine freedom of association.

“As such, this landmark interpretation further affirms a principle long upheld by workers’ rights defenders worldwide: that the ability to withdraw labour is indispensable to genuine freedom of association,”

Background and legal context

South Africa ratified ILO Convention No 87 in 1995. The convention’s supervisory bodies had for years treated the right to strike as an intrinsic corollary of freedom of association, but employers challenged that interpretation. The dispute intensified in 2012 when the Employers’ Group walked out of the Committee on the Application of Standards at the International Labour Conference, prompting the ILO to request an advisory opinion from the ICJ the first such request in nearly a century.

Role of South Africa in the case

South Africa was among the early supporters of the view that the right to strike, while not expressly spelled out in the treaty text, is a necessary element of trade union activities. Meth said South Africa’s submissions helped shape the court’s reasoning by drawing on the treaty’s drafting history, structure and subsequent ILO practice.

“The court’s endorsement of this reasoning represents a major victory for workers everywhere, particularly in contexts where collective bargaining is weak, or repression is high,”

What comes next

Although the ICJ opinion does not have binding force, it is expected to influence international labour law and debates over protections for collective action. The ruling ends decades of disagreement among ILO constituents over whether Convention No 87 explicitly protects the right to strike.