DEVELOPMENT AND RECOGNITION OF THE RIGHT TO STRIKE

UNDER INTERNTIONAL LAW

Prof OVC Okene* and Dr GG Otuturu****

Abstract
The right to strike is regarded as a fundamental right under international law
and forms the foundation for the exercise of other rights. It is part of the
Fundamental Principles and Rights at Work adopted by the International
Labour Organization (ILO) in 1988. The United Nations Global Compact and
the Guiding Principles on Business and Human Rights constitute the
operational framework for the application of the basic human rights
embedded in the ILO Declaration on Fundamental Principles and Rights at
Work to non-state actors, especially business enterprises. This paper
examines the development of the right to strike as a second generation right
and its recognition as a fundamental right under international law. It also
traces the legislative history of the International Labour Organization
Convention 87 of 1948 and the United Nations Covenant on Economic, Social
and Cultural Rights of 1966 recognizing the right to strike under international
law. It further highlights the conflict over the right to strike in the ILO
constituents and the acceptance of the right to strike in international and
regional human rights instruments, national constitutions and legislations,
judicial decisions and international economic agreements.

Keywords: civil liberties, human rights, labour rights, right to strike, trade union rights

Introduction
The right to strike is recognized under international labour law as part of the freedom of
association and the right of workers to organize their activities for the protection of their
economic and social interests.1It is regarded as a fundamental right which forms the
foundation for the exercise of other rights. 2 It is part of the fundamental principles and rights
at work adopted by the ILO and the international bill of rights adopted by the United Nations.

The right to strike is also recognized under various regional human rights instruments. 3 For
example, the right to strike is recognized as an implicit right inferred from the freedom of
association concept under the European Convention on Human Rights, 4 the American

*
Prof OVC Okene, LLB, LLM, BL, PhD (Essex, UK), FCAI, JP, Professor of Law and Dean, Faculty of
Law, Rivers State University, Port Harcourt, Nigeria; Solicitor and Advocate of the Supreme Court of
Nigeria. E-mail: ovcokene@yahoo.com; profovcokene@gmail.com
** **
Dr Gogo G. Otuturu, LL.B, LL.M, PhD, B.L, CBA, DipEd, ACIArb, Solicitor and Advocate of the
Supreme Court of Nigeria; Senior Lecturer and Head, Department of Jurisprudence and Public Law,
Faculty of Law, Niger Delta University, Wilberforce Island, Bayelsa State. E-mail:
otuturulaw@gmail.cocm; otuturulaw@yahoo.com
1
ILO, Digest of the Decisions and Principles of the Freedom of Association Committee of the Governing
Body of the ILO (5th revised edn, International Labour Office 2006) 109 paragraphs 522-523 (hereinafter
simply referred to as Digest).
2
United Nations, Right to Freedom of Peaceful Assembly and of Association: Note by the Secretary-General
(United Nations 2016) 6.
3
GG Otuturu, ‘Substance of the Right to Strike under International Law: The Right to Strike in Regional
Human Rights Law’ (2021) 3(1) Gitarattan International Business School Law Journal, 127-139.
4
European Convention on Human Rights 1950.
1
Convention on Human Rights,5 and the African Charter on Human and Peoples’ Rights. 6 It is
also recognized as an explicit right conferred under and the European Social Charter, 7 the
Charter of Fundamental Rights of the European Union, 8 the Charter of the Organization of
American States9 and the Additional Protocol to the American Convention on Human Rights
in the Area of Economic, Social and Cultural Rights.10

This paper examines the development of the right to strike as a second generation right and
its recognition as a fundamental right under international law. It traces the legislative history
of the International Labour Organization Convention 87 of 1948 and the United Nations
Covenant on Economic, Social and Cultural Rights of 1966 recognizing the right to strike. It
highlights the conflict over the right to strike in the ILO constituents and the acceptance of
the right to strike in international and regional human rights instruments, national
constitutions and legislations, judicial decisions and international economic agreements.

Generations of Rights
The right to strike was first recognized amongst the second generation rights comprising
economic and social rights, the first generation rights being civil and political rights
otherwise known as civil liberties.11 The Universal Declaration of Human Rights adopted by
the United Nations in 1948,12 which contained the first comprehensive catalogue of
fundamental human rights, did not categorize them into first and second generations of
rights.13 However, the International Covenant on Civil and Political Rights 1966 14 contained
the first generation rights, while the International Covenant on Economic, Social and Cultural
Rights196615 contained the second generation rights.16

The dichotomy between first-and second generation rights was also reflected in most of the
regional instruments. In the European region, for example, the European Convention on

5
American Convention on Human Rights 1969.
6
African Charter on Human and Peoples’ Rights 1981.
7
European Social Charter 1961 (Revised 1996).
8
Charter of Fundamental Rights of the European Union 2000.
9
Charter of the Organization of American States 1948.
10
Additional Protocol to the American Charter on Human Rights in the Area of Economic, Social and
Cultural Rights (“Protocol of San Salvador”) 1988.
11
Council of Europe, The Evolution of Human Rights (Council of Europe 2017) 291-292.
12
United Nations, General Assembly, Universal Declaration of Human Rights, G.A. Res. 217(III) A. UN
Doc. A/RES/217(III) (Dec. 10, 1948).
13
Fuusto Pocar, ‘Some Thoughts on the Universal Declaration of Human Rights and the “Generations” of
Human Rights’ (2015) 10 Intercultural Human Rights Law Review; 43.
14
United Nations, General Assembly, International Covenant on Civil and Political Rights, New York, 16
December 1966, United Nations, Treaty Series, Vol. 999; 171.
15
United Nations, General Assembly, International Covenant on Economic, Social and Cultural Rights, New
York, Dec. 16, 1966, United Nations, Treaty Series, Vol. 993; 3.
16
M Forde, ‘The European Convention on Human Rights and Labour Law’ (1983) 31 American Journal of
Comparative Law; 301-332, 304.
2
Human Rights17 contained the civil and political rights, while the European Social Charter 18
contained the economic and social rights including the right to strike. In the American region,
the American Convention on Human Rights 19 contained the civil and political rights, while
the Additional Protocol to the American Convention20 contained the economic and social
rights including the right to strike. However, in the African region, the African Charter on
Human and Peoples’ Rights21 makes no distinction between civil and political rights, and
social and economic rights.22

The implication is that only the civil and political rights were considered and labelled as
human rights, referring to rights possessed by all human beings by reason of their humanity,
while the social and economic rights were considered and labelled as trade union rights or
simply as labour rights, referring to rights possessed by human beings by reason of their
status as workers.23 This led to the emergence of two separate movements known as the
human rights movement and the trade union rights movement. 24 Initially, these two
movements adopted different methodologies and operated on separate tracks that are
sometimes parallel and rarely meet.25

The human rights movement was dominated by international nongovernmental

organizations26 which agitated for governments to protect and respect human rights and,
accordingly, held governments accountable for violations of human rights across the world.
They caused investigations into cases of human rights violations especially the right to
freedom of association by governments and issued reports detailing such violations with calls
on the respective governments to protect and respect human rights and to provide appropriate
mechanisms for redressing human rights abuses.27

17
Convention for the Protection of Human Rights and Fundamental Freedoms, 1950.
18
European Social Charter 1961 (Revised 1996).
19
American Convention on Human Rights, 1969.
20
Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and
Cultural Rights (Protocol of San Salvador) 1988.
21
African Union, African Charter on Human and Peoples’ Rights, 1981.
22
NS Okogbule, ‘Towards Constitutional Protection and Enforcement of Social and Economic Rights in
Nigeria’ (2015) 1(1) The Adjudicator 33-46, 36.
23
The definition of “worker” for the purpose of determining whether or not a person is entitled to trade union
rights has generated controversies as to whether the term should be restricted to workers in the formal
sector alone or it should include workers in the informal sector and nonstandard forms of work.
24
Kevin Kolben, ‘Labour Rights as Human Rights’ (2010) 50(2) Virginia Journal of International Law 449-
484.
25
VA Leary, ‘The Paradox of Workers’ Rights as Human Rights’ in LA Compa and SF Diamond (eds),
Human Rights, Labour Rights and International Trade (University of Pennsylvania Press 1996) 22.
26
Some of the international nongovernmental organizations that are still in the forefront of the human rights
movement are Human Rights First (HRF), Human Rights Watch (HRW) and Amnesty International (AI).
27
Human Rights Watch, ‘Unfair Advantage: Workers’ Freedom of Association in the United States under
International Human Rights Standards’ (Human Rights Watch 2000) .
3
The trade union rights movement, on the other hand, was dominated by trade unions, 28
initially supported by a few non-labour organizations, such the Fair Labour Association and
the Workers’ Rights Consortium, which agitated for the recognition of labour rights as human
rights at the workplace. The main arguments of this movement are that the rights to freedom
of association and collective bargaining are not only part of the general freedom of
association which is part and parcel of civil liberties 29 but also promote the exercise of a wide
range of other human rights and ensure equality and democracy in the workplace.30

Labour Rights as Human Rights at Work

In 1970, the ILO emphasized in its resolution concerning trade union rights and their relation
to civil liberties that the absence of those civil liberties enunciated in the Universal
Declaration of Human Rights and the International Covenants on Civil and Political Rights
removes all meaning from the concept of trade union rights. 31 It placed emphasis on civil
liberties as essential for the exercise of trade union rights especially (a) the right to personal
liberty; (b) freedom of opinion and expression; (c) freedom of assembly; (d) right to fair trial;
and (e) right to protection of trade union property. 32 Finally, it outlined a number of trade
union rights including the right to collective bargaining and the right to strike.33

In 1998, the fundamental status of the rights to freedom of association and collective
bargaining was further reinforced in ILO Declaration on Fundamental Principles and Rights
at Work. Under the Declaration, Member States are under obligation to respect, promote and
realize in good faith and in accordance with the ILO Constitution, the principles concerning
the fundamental rights enunciated in its fundamental Conventions even if they have not
ratified those Conventions.34

The Declaration covers four fundamental rights, which are embedded in the ILO core
Conventions. These fundamental rights include freedom of association 35 and recognition of
the right to collective bargaining.36 The other three categories of fundamental rights at work

28
In the forefront of the trade union rights movement are the American Federation of Labour (AFL), the
World Federation of Trade Unions (WFTU) and the International Trade Union Confederation (ITUC).
29
ILO, Freedom of Association and Industrial Relations, Report VII, International Labour Conference, 30 th
Session, Geneva, 1937 (ILO 1947) 11-12; L Swepston, ‘Human Rights Law and Freedom of Association:
Development through ILO Supervision’ (1998) 2 International Labour Review 169, 177
30
UN General Assembly, Right to Freedom of Peaceful Assembly and of Association: Note by the Secretary-
General (United Nations 2016) 6.
31
ILO, Resolution of 1970 concerning Trade Union Rights and their Relation to Civil Liberties, para1.
32
Ibid, para 2.
33
Ibid, para 15; ILO, Trade Unions Rights and their Relation to Civil Liberties (ILO 1969) 7-21.
34
ILO, Declaration on Fundamental Principles and Rights at Work, 1998, para 2.
35
Freedom of Association and the Right to Organize Convention, 1948 (No. 87).
36
Right to Organize and Collective Bargaining Convention, 1949 (No. 98).
4
are elimination of all forms of forced labour; 37 effective abolition of child labour;38 and
elimination of discrimination in respect of employment and occupation.39

It has been observed that a fuller understanding of these fundamental rights comes from the
underlying core ILO Conventions.40 The ILO Governing Body has identified eight core
conventions41 which correspond with the four categories of fundamental rights at work,
namely:
(1) Freedom of Association and the Right to Organize Convention, 1948 (No. 87) and
Right to Organize and Collective Bargaining Convention, 1949 (No. 98);
(2) Forced Labour Convention, 1930 (No. 29) and Abolition of Forced Labour
Convention, 1957 (No. 105);
(3) Minimum Age Convention, 1973 (No. 138) and Worst Forms of Child Labour
Convention, 1999 (No. 182);
(4) Equal Remuneration Convention, 1951 (No. 100) and Discrimination (Employment
and Occupation) Convention, 1958 (No. 111).42

The inclusion of the rights to freedom of association and collective bargaining in the
Declaration means the transformation of these rights from the status of trade union rights to
human rights. In this sense, the Declaration tends to apply to workers’ rights the model
applying to human rights,43 which were recognized in the Vienna Declaration 44 to be
‘universal, indivisible, interdependent and interrelated’ 45 Indeed, apart from child labour,
which may be considered as a form of slavery or forced labour, all the four principles are
found in the United Nations Universal Declaration of Human Rights.46

37
Forced Labour Convention, 1930 (No. 29) and Abolition of Forced Labour Convention, 1957 (No. 105).
38
Minimum Age Convention, 1973 (No. 138) and Worst Forms of Child Labour Convention, 1999 (No. 182).
39
Equal Remuneration Convention, 1951 (No. 100) and Discrimination (Employment and Occupation)
Convention, 1958 (No. 111).
40
JR Bellace, ‘The ILO Declaration on Fundamental Principles and Rights at Work’ (2001) 17 International
Journal of Comparative Labour Law and Industrial Relations; 269, 275.
41
ILO, International Labour Organization’s Fundamental Conventions (ILO 2000) 8; ILO, Rules of the
Game: A Brief Introduction to International Labour Standards (ILO 2009) 15; ILO, Core Labour
Standards Handbook (Asian Development Bank 2006) 21-54.
42
At the time the Declaration was adopted in 1998, only seven conventions were considered core or
fundamental, namely: Freedom of Association and Protection of the Right to Organize Convention, 1948
(No. 87), the Right to Organize and Collective Bargaining Convention, 1949 (No. 98), the Forced Labour
Convention, 1930 (No. 29), the Abolition of Forced Labour Convention, 1957 (No. 105), the Minimum Age
Convention, 1973 (No. 138), the Equal Remuneration Convention, 1951 (No. 100), and the Discrimination
(Employment and Occupation) Convention, 1958 (No. 111). The Worst Forms of Child Labour
Convention, 1999 (No. 182) was later unanimously added upon its adoption. See J. M. Servais,
International Labour Law (3rd revised edn, Kluwer Law International B.V., 2011) 101 paragraph 206.
43
Francis Maupain, ‘Revitalization Not Retreat: The Real Potential of the 1998 ILO Declaration for the
Universal Protection of Workers’ Rights’ (2005) 16(3) European Journal of International Law 439, 462.
44
United Nations General Assembly, Vienna Declaration and Programme of Action, 1993.
45
Ibid, para 5.
46
See UNDHR, articles 20 and 23(4) referring to freedom of association; Articles 4 and 23 referring to
slavery and forced labour; and Articles 7 and 23(2) referring to nondiscrimination.
5
Thus, the rights to collective bargaining and collective actions including the right to strike
attained the status of fundamental rights under international law. This is an attestation of the
fact that labour rights have been accepted as human rights at work. According to the United
Nations Secretary-General, ‘Labour rights are human rights, and the ability to exercise these
rights in the workplace is a prerequisite for workers to enjoy a broad range of other rights,
whether economic, social, cultural, political or otherwise’.47

It is quite clear that human rights and labour rights have converged especially in the right to
freedom of association which is a foundational right for the exercise of a wide range of other
rights. As Ewing has argued, not only is the exercise of the right to strike itself the exercise of
a human right, but also it is a means of promoting other human rights.48

The change in the status of labour rights as human rights at work has made such human rights
organizations as Human Rights Watch49 and Amnesty International50 to change their
methodologies by including business and human rights programmes under which they
investigate and report on violations of freedom of association not only by governments but
also by business enterprises. This is consistent with the United Nations Global Compact 51
which requires business enterprises to respect human rights and uphold the rights to freedom
of association and collective bargaining.52 This is also consistent with the United Nations
Guiding Principles on Business and Human Rights 53 which places responsibilities on both
states and business enterprises to respect human rights, assess adverse human rights impacts,
and provide effective grievance mechanisms for redressing business-based human rights
abuse.54

47
United Nations, Right to Freedom of Peaceful Assembly and of Association: Note by the Secretary-General
(United Nations 2016) 6.
48
Keith Ewing, ‘Laws against Strikes Revisited’ in C Bernard and others (eds), The Future of Labour Law:
Liber Amicorum Bob Hepple QC (Hart Publishing 2004) 51.
49
Human Rights Watch, ‘A Strange Case: Violations of Workers’ Freedom of Association in the United
States by European Multinational Corporations’ (Human Rights Watch 2010)
50
Amnesty International, ‘Peoples Republic of China: Labour Unrest and the Suppression of Rights to
Freedom of Association and Expression’ <AI Index ASA 17/015/2002> accessed 10 September 2017.
51
United Nations, ‘Ten Principles of the United Nations Global Pact’ (Global Pact Office, 2008)
52
Ibid, Principle 3; ILO, Tripartite Declaration of Principles concerning Multinational Enterprises and
Social Policy, adopted by the Governing Body of the International Labour Office at its 204 th Session
(November 1977) and amended at its 279th Session (November 2000), 295th Session (March 2006) and 329th
Session (March 2017) 2-5.
53
United Nations, ‘Guiding Principles on Business and Human Rights: Implementing the United Nations
“Protect, Respect and Remedy” Framework’ (United Nations 2011).
54
For an analysis of the United Nations Guiding Principles on Business and Human Rights, see OD Schutter,
‘Towards a New Treaty on Business and Human Rights’ (2015) 1(1) Business and Human Rights Journal
42; R Davis, ‘The UN Guiding Principles on Business and Human Rights and Conflict-affected Areas: State
Obligations and Business Responsibilities’ (2012) 94(887) International Review of the Red Cross 961.
6
The United Nations Global Compact55 and the Guiding Principles on Business and Human
Rights56 are derived mainly from the ILO Declaration on Fundamental Principles and Rights
at Work.57 These two United Nations documents constitute the operational framework for the
application of the basic human rights embedded in the ILO Declaration to non-state actors,
especially business enterprises. The aim, according to the United Nations, is to harness the
support of the business community to promote, respect and protect the fundamental principles
and rights at work through the Global Compact and the Guiding Principles on Business and
Human Rights.58

Conflict over the Right to Strike

The Government and Workers’ Groups in the ILO tripartite constituents have always
supported the right to strike. However, the Employers’ Group initially raised objections to the
recognition of the right to strike in the jurisprudence of the supervisory bodies of the ILO. 59
The Employers’ Group argued that a right to strike is not provided for in ILO Conventions 87
and 98 and that the tripartite constituents did not intend that there would be a right to strike at
the time these instruments were adopted. The Group also challenged the authority of the
Committee of Experts to give binding interpretations of the Conventions, 60 arguing that by
virtue of article 37 of the ILO Constitution, it is only the International Court of Justice that
can give a binding interpretation of Conventions.61

The conflict reached its climax in 2012 when the Employers’ Group refused to cooperate
with the other constituents on the Conference Committee on Application of Standards to
adopt and discuss a list of member states accused of serious violations of ILO standards. 62 It
has been argued that this conflict in the ILO constituents was not just about the existence of
the right to strike but a challenge to the authority of the ILO to monitor and enforce its

55
The Ten Principles of the Global Compact are derived from the Universal Declaration of Human Rights
(Principles 1 and 2); the ILO Declaration on Fundamental Principles and Rights at Work (Principles 3, 4, 5
and 6); the Rio Declaration on Environment and Development (Principles 7, 8 and 9); and the United
Nations Convention Against Corruption (Principle 10).
56
The ‘Guiding Principles on Business and Human Rights’ are derived from the International Bill of Human
Rights and the ILO Declaration of Fundamental Principles and Rights at Work.
57
United Nations, Guiding Principles on Business and Human Rights: Implementing the United Nations
“Protect, Respect and Remedy” Framework, Part II (A), para 12.
58
JR Bellace, ‘Human Rights at Work: The Need for Definitional Coherence in the Global Governance
System’ (2014) 30(2) International Journal of Comparative Labour Law and Industrial Relations; 173-198.
59
L Swepston, ‘Crisis in the ILO Supervisory System: Dispute over the Right to Strike’ (2013) 39(2)
International Journal of Comparative Labour Law and Industrial Relations 199‐218.
60
International Organization of Employers, Do ILO Conventions 87 and 98 Recognize a Right to Strike? (IOE
2014) 1-4.
61
ILO, Conference Committee on the Application of Standards: Extracts from the Record of Proceedings,
General Report, International Labour Conference, 101st Session, Geneva, 2012 (ILO 2012) para. 82.
62
JR Bellace, ‘Defining “International Labor Right”: Can there be Freedom of Association without a Right to
Strike?’ (Paper Delivered at Global Labour University Conference, Washington, D.C. October 1 – 2, 2015)
3.
7
standards63 and part of a grand effort to turn hard law labour standards into soft law. 64 It has
also been argued that the employers’ concerted activity to prevent the Conference Committee
on the Application of Standards from carrying out its functions under the ILO Constitution
amounted to a strike.65

By the singular concerted “walk-out” from the 2012 Conference Committee on the
Application of Standards, the Employers’ Group supported the practice of striking in support
of legitimate objectives. Fortunately, in 2015, at a special ILO tripartite meeting on
Convention 1948 (No. 87) in relation to the right to strike, the Workers’ and Employers’
Groups reached a compromise and issued a joint statement recognizing the rights of workers
and employers to take collective actions in support of legitimate industrial interests. 66

The recognition of the right to strike by the ILO tripartite constituents (that is, the Workers’
Group, the Employers’ Group and the Government Group), meant a double-victory for the
trade union rights movement. In the first place, it has affirmed the right to strike in ILO
Convention 87 as enunciated by the ILO supervisory bodies, thus ending the crisis in the ILO
tripartite constituents that had lasted for decades. In the second place, it has affirmed the
fundamental status of the right to strike, thus strengthening the convergence of the human
rights movement and the trade union rights movement with a single focus on the United
Nations ‘Protect, Respect and Remedy’ framework for governments and business enterprises.

International Recognition of the Right to Strike

It will be recalled that the issue of recognition of the right to strike was first raised in the
United Nations at its Fourth Session in 1947 in two separate memoranda addressed to the
Economic and Social Council by the World Federation of Trade Unions and the American
Federation of Labour. In its memorandum, the American Federation of Labour raised the
question of the extent of recognition and protection of the right of workers to resort to strikes.
At the end of the discussions, the Economic and Social Council resolved 67 that the two
memoranda should be transmitted to the ILO for consideration.68

Accordingly, at its 31st Session in 1948, the International Labour Conference considered and
adopted Convention 87 concerning Freedom of Association and Protection of the Right to
63
C Hofmann, ‘(The Right to) Strike and the International Labour Organization: Is the System for Monitoring
Labour and Social Standards in Trouble?’ (Friedrich Ebert Stiftung 2014) 1-5.
64
DF Frey, ‘Conflict over Conflict: The Right to Strike in International Law’ (2017) 8(1) Global Labour
Journal; 17-31, 18.
65
Ibid 19.
66
ILO, Tripartite Meeting on the Freedom of Association and Protection of the Right to Organize Convention
1948 (No. 87) in relation to the Right to Strike and the Modalities and Practices of the Strike Action at
National Level, 23-25 February 2015 (ILO 2015) 2-4.
67
United Nations, Economic and Social Council, Resolution 52 IV of 24 March 1947.
68
R Ben-Israel, International Labour Standards: The Case of Freedom to Strike (Kluwer 1988) 38.
8
Organize. It appeared from the legislative history of Convention 87that the right to strike was
taken for granted. This is because two proposed amendments to Articles 3 and 8 of the draft
Convention, which sought to secure explicitly the right to strike, were withdrawn or tacitly
deferred. Subsequently, the amendment proposed by the Uruguayan representative was
submitted to the United Nations and was adopted as an amendment to the draft International
Covenant on Economic, Social and Cultural Rights. This amendment led to the inclusion of
the right to strike in the International Covenant on Economic, Social and Cultural Rights. 69

It appeared that the Workers’ Group feared that an explicit safeguard of the right to strike
would be met with severe limitations from the Employers’ Group 70 and this might render
impossible the exercise of the rights guaranteed under Convention 87.The right to strike is,
therefore, not explicitly recognized under Convention 87. However, the ILO supervisory
bodies have always considered that the right to strike is implicit in Convention 87 as part of
the freedom of association and the right of workers to organize their activities for the
protection of their economic and social interests 71protected under Articles 3, 8 and 10 of
Convention 87.72 Thus, the ILO supervisory bodies have interpreted the right to organize
trade union activities to include the right to strike.73

The ILO supervisory bodies have, by their interpretation of Articles 3, 8 and 10 of

Convention 87, established a ‘far-reaching’ jurisprudence74 which qualified as customary
international law recognizing the right to strike with reasonable restrictions. 75 It has been
accepted by consensus and applied in international and regional instruments, 76 national
constitutions and legislations,77 judicial decisions78 and international economic agreements.79

69
Ben-Israel (n64) 41-42.
70
Ibid 46.
71
Digest (2006) 109 paras 522-523
72
Roy Mthombeni, ‘The Right or Freedom to Strike: An Analysis from an International and Comparative
Perspective’ (1990) 23 Comparative and International Law Journal of South Africa 337, 340.
73
ILO, Giving Globalization a Human Face, General Survey on the Fundamental Convention Concerning
Rights at Work in Light of the ILO Declaration on Social Justice for a Fair Globalization, 2009, Report of
the E\Committee of Experts on the Application of Conventions and Recommendations, Report III (Part
1B), International Labour Conference, 101st Session, 2012 (ILO 2012) 46 para 117 (hereinafter simply
referred to as General Survey (2012).
74
T Novitz, ‘The Restricted Right to Strike: ‘Far-Reaching’ ILO Jurisprudence on the Public Sector and
Essential Services’ (2017) 38(3) Comparative Labour Law and Policy Journal; 101-122.
75
International Trade Union Confederation, The Right to Strike and the ILO: The Legal Foundations (ITUC
2014) 90.
76
ILO, Giving Globalization a Human Face, International Labour Conference 101st Session, 2012, General
Survey on the Fundamental Conventions Concerning Rights at Work in the Light of the ILO Declaration on
Social Justice for a Fair Globalization, Report of the Committee of Experts on the Application of
Conventions and Recommendations, Report III (Part 1B) (ILO 2012) 49 para 120 (hereinafter simply
referred to as General Survey (2012).
77
Ibid 50 para 123.
78
ILO, Compendium of Court Decisions http://compendium.itcilo.org/en/compendium-decisions> accessed
18 September 2017
79
ITUC (n 75) 90.
9
The decision of the Supreme Court of Canada in Health Services and Support-Facilities
Subsector Bargaining Association v British Columbia 80clearly shows that there is in existence
customary international law on the right to collective bargaining and strike based on the
interpretations of Convention 87 by the ILO supervisory bodies. The Court adopted the views
expressed by Forde81 thus:
Convention No. 87 has been subject to numerous interpretations by the ILO’s
Committee on Freedom of Association, Committee of Experts and Commissions
of Inquiry. These interpretations have been described as the ‘cornerstone of the
international law on trade union freedom and collective bargaining.82

In 1948, the United Nations General Assembly adopted the historic Universal Declaration of
Human Rights, which has been described as the international Magna Carta of all mankind. 83
The Declaration, in article 20, guarantees to everyone the right to freedom of association. The
rights proclaimed in the Declaration were later expounded and codified in two separate
legally binding instruments: the International Covenant on Civil and Political Rights and the
International Covenant on Economic, Social and Cultural Rights both of which were adopted
in 1966. These three fundamental documents (the Universal Declaration of Human Rights,
the International Covenant on Civil and Political Rights and the International Covenant on
Economic, Social and Cultural Rights) constitute the International Bill of Human Rights. 84

The International Covenant on Civil and Political Rights, 85 as its title implies, deals
essentially with civil liberties. Article 22 of the Covenant guarantees to everyone the right to
associate with others, including the right to join or form a trade union for the protection of his
interests. Although article 22 does not expressly confer the right to strike on workers, the
Human Rights Committee, which is charged with the responsibility for monitoring the
implementation of the Covenant, has upheld the right to strike under the provisions. In its
concluding observations on Chile, the Human Rights Committee said:
The general prohibition imposed on the right of civil servants to organize a
trade union and bargain collectively, as well as their right to strike, raises
serious concerns, under Article 22 of the Covenant.86
80
(2007) 2 SCR 391.
81
Forde (n 16) 302.
82
ILO, Compendium of Court Decisions <http://compendium.itcilo.org/en/compendium-decisions/supreme-
court-of-canada-health-services-and-support-2013-facilities-subsector-bargaining-assn.-v.-british-columbia-
8-june-2007-2007-scc-27-2007-2-s.c.r.-391> accessed 18 September 2017. See also Saskatchewan
Federation of Labour v Saskatchewan (2015) 1 RCS 245, 266 where Justice Abella said, ‘there is an
emerging international consensus that, if it is to be meaningful, collective bargaining requires a right to
strike.’
83
HJ Steiner and others, International Human Rights in Context: Law, Politics, Morals (3rd edition, OUP
2007) 146.
84
L Sibbel, ‘ILO Conventions and the Covenant on Economic, Social and Cultural Rights: One Goal, Two
Systems’ (2001) 1 Dialogue + Cooperation; 51, 63.
85
United Nations International Covenant on Civil and Political Rights 1966 (ICCPR).
86
United Nations, Concluding Observations of the Human Rights Committee: Chile, UN Doc.
CCPR/C/79/Add.104 (1999)
10
The International Covenant on Economic, Social and Cultural Rights, 87on the other hand,
deals with economic, social and cultural rights. With respect to the right to strike, the States
Parties undertake under Article 8(1)(a) to ensure the ‘right to strike,’ which is to be exercised
in conformity with national laws. 88 It might be thought that Article 8(1)(d) would allow
national laws to place all manner of restrictions on the right to strike. However, the States
Parties are not allowed to use legislative measures which would derogate from or prejudice
the guarantees under ILO Convention 87. Article 8(3) provides thus:
Nothing in this article authorizes States Parties to the International Labour
Organization Convention of 1948 concerning the Freedom of Association and
Protection of the Right to Organize to take legislative measures which would
prejudice, or apply the law in such manner as would prejudice, the guarantees
provided for in that Convention.89

It has been argued that article 8 paragraph 3 of the International Covenant on Economic,
Social and Cultural Rights strongly suggests that the right to strike is protected by ILO
Convention 87, otherwise. As Ewing asks, ‘why would it be appropriate to tell States that it is
not permissible to fall below ILO standards on the right to strike, if the right to strike is not
protected by these ILO standards in the first place?’90

It is submitted that the right to strike is guaranteed under Convention 87 as an important

aspect of the principle of freedom of association and the right to organize trade union
activities for the protection of the interests of its members. It is the basis for the exercise of
other fundamental rights guaranteed under Conventions 87 and 98.

Conclusion
This paper has examined the development of the right to strike as a second generation right
and its recognition as a fundamental right under international law. It has traced the legislative
history of the International Labour Organization Convention 87 of 1948 and the United
Nations Covenant on Economic, Social and Cultural Rights of 1966. Although the right to
strike is not explicitly recognized in ILO Conventions 87 on Freedom of Association and the
Right to Organize, it is expressly recognized as a fundamental right under the United Nations
Covenant on Economic, Social and Cultural Rights.

However, in examining cases that come before it involving violations of freedom of

association by State actors, the ILO supervisory bodies have interpreted Convention 87 as
conferring the right to strike as part of the freedom of association and the right of workers to

87
United Nations, International Covenant on Economic, Social and Cultural Rights of 1966 (ICESCR).
88
Ibid, article 8(1)(d).
89
There are similar provisions under ICCPR, article 22(3).
90
KD Ewing, ‘Myth and Reality of the Right to Strike’ (2013) 29(2) International Journal of Comparative
Labour Law and Industrial Relations; 146.
11
organize their activities for the protection of their economic and social interests. 91 This has
been aaccepted by consensus and applied in international and regional instruments, 92 national
constitutions and legislations,93 judicial decisions94 and international economic agreements.95

The decision of the Supreme Court of Canada in Health Services and Support-Facilities
Subsector Bargaining Association v British Columbia 96 is an attestation of the fact that there
is in existence customary international law on the right to collective bargaining and strike
based on the interpretations of Convention 87 by the ILO supervisory bodies. 97 These
interpretations have been described as the ‘cornerstone of the international law on trade union
freedom and collective bargaining.’98 The reasoning is that if collective bargaining is to be
meaningful, it requires a right to strike.99

91
Digest (2006) 109 paras 522-523
92
ILO, Giving Globalization a Human Face, International Labour Conference 101st Session, 2012, General
Survey on the Fundamental Conventions Concerning Rights at Work in the Light of the ILO Declaration on
Social Justice for a Fair Globalization, Report of the Committee of Experts on the Application of
Conventions and Recommendations, Report III (Part 1B) (ILO 2012) 49 para 120 (hereinafter simply
referred to as General Survey (2012).
93
Ibid 50 para 123.
94
ILO, Compendium of Court Decisions http://compendium.itcilo.org/en/compendium-decisions> accessed
18 September 2017
95
ITUC (n 75) 90.
96
(2007) 2 SCR 391.
97
Ibid 391.
98
Ibid 391.
99
Saskatchewan Federation of Labour v Saskatchewan (2015) 1 RCS 245, 266 (Justice Abella).
12