THE HAGUE – The International Court of Justice (ICJ) delivers its Advisory Opinion on the Right to Strike under ILO Convention No. 87

La 2. Please be seated. The sitting is open.

Before we begin today's judicial proceedings, I'd like to pay solemn tribute on behalf of the court to Sir Kenneth Keith, former member of the court, who sadly passed away on the 13th of May.

2026.

Judge Keith was born in Auckland in 1937. He studied law at the University of Auckland, graduating in 1961, after which he obtained a Master of Laws from Victoria University of Wellington, before pursuing further legal studies at Harvard Law School in 1964. He began his career at the Department of External Affairs of the Government of New Zealand and represented his country at a number of international conferences and as counsel before this Court in the nuclear test case, New Zealand v France. Judge Keese's long and illustrious career combined service in both academia and the judiciary. Until the early 1980s, He was a professor of law at Victoria University of Wellington, where he later held the title of Professor Emeritus. He also lectured as a visiting academic at many universities around the world and published extensively on constitutional, administrative, and international law. In the 1990s, following his appointment as Queen's Counsel, He served as the judge on the High Court and the Court of Appeal of New Zealand, and in 2004 became one of the inaugural.

Judges of the newly established Supreme Court of New Zealand.

Judge Keith was also a leading advocate of law reform in his country, serving as president of the New Zealand Law Commission from 1991 to 1996. He was elected to the Institut de droit international in 1997 and became a titular member in 2003. He also served as both a member and chair of a number of international arbitral tribunals and as a member and president of the International Humanitarian.

Fact-Finding Commission under the first Additional Protocol to the Geneva Conventions.

Upon his election to the International Court of Justice in 2006, becoming the first New Zealander to serve as a member of the Court, Judge Keyes demonstrated a deep commitment to public service and a steadfast belief in the value of the United Nations. Throughout his tenure at the Court, he approached his judicial work with intellectual rigour, integrity and dedication. Reflecting perhaps his many years of teaching, Judge Keith was particularly attentive to ensuring that the court's judgments were drafted in an.

Accessible legal style. Despite his busy schedule, he was known to be generous with his time with the court's junior lawyers. Judge Keith was popular among his colleagues on the bench, who appreciated his warmth, kindness and collegial spirit, including during his service as a judge ad hoc in two cases following his retirement from the Court.

In recognition of his extraordinary achievements, he was the recipient of numerous high distinctions throughout his lifetime. Judge Keith will be sorely missed. We extend our deepest sympathy to his family, in this time of loss. I would now like to invite you to stand and observe a minute's silence in memory of Judge Kenneth Keith. Thank you very much. Please sit down. I now turn to the Court's judicial business. The Court meets today pursuant to article 67 of the Statute to deliver its advisory opinion on the request submitted by the Governing Body of the International Labour Office on the question of the right to strike under ILO Convention No.

87.

I recall that on 10 November 2023, the Governing Body of the International Labour Office, acting in accordance with article 37, paragraph 1, of the Constitution of the International Labour Organization and article 9, paragraph 2, of the agreement between that Organization and the United Nations, adopted a resolution by which it decided to request the International Court of Justice to render an advisory opinion. By a letter dated 13 November 2023, the Director-General of the ILO officially communicated to the Court the decision taken by the Governing Body to submit the following question for an advisory opinion. I quote, "Is the right to strike of workers and their organisations protected under the Freedom of Association and Protection of the Right to Organize Convention, 1948, No. 87." In accordance with the usual practice, I shall not read out the introductory paragraphs of the opinion, which set out the main elements of the procedural history of the proceedings. I shall also omit or summarize some of the other paragraphs of the opinion. I shall accordingly begin the reading of the advisory opinion at paragraph 26.

The full text of the opinion will, of course, be available at the close of the sitting.

When seized of a request for an advisory opinion, the Court must first consider whether it has jurisdiction to give the opinion requested, and if so, whether there is any reason why the Court should, in the exercise of its discretion, decline to answer the request. Three conditions must be satisfied to found the jurisdiction of the Court when a request for an advisory opinion is submitted to it by a specialized agency under Article 96, paragraph 2, of the Charter of the United Nations. The agency requesting the opinion must be duly authorized by the General Assembly under the Charter to request opinions from the Court. The opinion requested must be on a legal question. And this question must be one arising within the scope of the activities of the requesting agency. The ILO, a specialized agency, has been duly authorized to request advisory opinions of the Court pursuant to Article 9, paragraph 2 of the agreement governing the relationship between the United Nations and the ILO. On the 27th of June, 1949, the International Labor Conference expressly authorized the governing body of the International Labor Office to request advisory opinions of the International Court of Justice. To be of a legal nature, a question must be framed in terms of law and raise problems of international law. It must also be susceptible of a reply based on law. In its request, the ILO asked the Court to determine whether the right to strike of workers and their organizations is protected under the 1948 Freedom of Association and Protection of the Right to Organise Convention, which is referred to as Convention No. 87 in the advisory opinion. Since the question constituting the subject of the request concerns the interpretation of a treaty provision, it is indeed a legal question. Finally, as the opinion requested relates to the interpretations of a convention of the ILO, it undoubtedly falls within the scope of the activities of the requesting organ. In view of the foregoing, the Court concludes that it has jurisdiction to give the opinion sought. The Court has a discretionary power to decline to give an advisory opinion, even if the conditions of jurisdiction are met. Only compelling reasons may lead the Court to refuse to give its opinion in response to a request falling within its jurisdiction. In the present proceedings, one participant has argued that the Court should exercise its discretion to decline to give the advisory opinion requested on the grounds that the dispute should be resolved using the mechanisms specifically provided for within the ILO, and that an advisory opinion of the Court would place at risk the inherent tripartite nature of the dialogue within the organization involving representatives of governments, employers, and workers. The Court is not convinced by this argument. First, ILo constituents have made sustained efforts to resolve the matter through other means. Secondly, the court notes that under Article 37, paragraph one of the ILO Constitution, any question or dispute relating to the interpretation of this Constitution or of any subsequent convention concluded by the members in pursuance of the provision of this Constitution shall be referred for decision to the International Court of Justice, and that the instruments in force do not require certain internal procedures within the ILO to be exhausted before a request for an advisory opinion is made. In submitting a question concerning the interpretation of Convention No. 87 to the Court, the governing body has made use of one of the options provided for in the constituent instrument of the Organization. In light of the above, the Court concludes that there is no compelling reason for it to decline to give the opinion requested by the Governing Body of the International Labour Office. The Court then recalls the purpose and structure of the ILO before turning to the history of the disagreement regarding Convention No. 87. In accordance with the ILO's tripartite structure, representatives of governments, employers and workers are involved in its activities. It is made-up of three main organs: International Labour Conference, the Governing Body and the International Labour Office. The ILO adopts international labour standards which may take the form of international labour conventions and protocols that can be ratified by member states, or non-binding international labour recommendations. In order to ensure compliance and accountability with regard to these instruments, the ILO has in place a system of regular and special supervision. Regular supervision is discharged by two permanent supervisory bodies, namely the Committee of Experts on the Application of Conventions and Recommendations, to which I shall refer as the Committee of Experts, and the Conference Committee on the Application of Standards, to which I shall refer as the Committee on Standards. The supervisory system also involves special supervisory procedure, In particular, under Article 24 of the ILO Constitution, employers or workers' organizations can use the representation procedure to raise concerns about the member state's failure to implement a ratified convention. Under Article 26 of the ILO Constitution, a member state has the right to file a complaint regarding the failure of another member state to give effect to any convention which both States have ratified. Paragraph 3 of that article states that the Governing Body may appoint a commission of inquiry to consider the complaint and to report thereon. In 1950, the Governing Body established a Fact-Finding and Conciliation Commission for the impartial examination of complaints relating to alleged infringement of trade union rights. In 1951, the Committee on Freedom of Association, to which I shall refer as the CFA, was set up by the Governing Body to undertake a preliminary examination of such complaints. The Court then sets out the history of the disagreement within the ILO over the interpretation of Convention No. 87 regarding the question whether the right to strike of workers' organizations or trade unions is protected under that Convention. The Court briefly set out the ways in which a divergence of views developed over the years between the workers' group and the employers' group as to the scope of Convention No. 87, leading to what the ILO and other participants have referred to as an institutional crisis at the 101st session of the International Labour Conference in 2012. The Court then examined the scope and meaning of the question put by the Governing Body. Some participants have argued that the question put to the Court is too narrow in that it does not adequately reflect the discussion within the ILO which gave rise to the institutional deadlock. More specifically, they claim that the phrasing of the question posed does not allow consideration of the content of the right to strike, its limit or the conditions of its exercise, or make it possible to ascertain which authority has the competence to determine the scope and content of that right. As the Court has held on numerous occasions, it may depart from the language of the question put to it where the question is not adequately formulated or does not reflect the legal questions really in issue. Similarly, where the question asked is ambiguous or vague, the Court may clarify it before giving its opinion. In the present proceedings, the question put by the Governing Body is both circumscribed and specific, insofar as it asks the Court to determine whether the right to strike is protected under Convention No. 87. Since there is no ambiguity in either the question or its terms, the Court considers that there is no need to reformulate the question referred to it. The Court next considers the applicable rules of interpretation before proceeding to the interpretation of Convention No.

87.

The Court states that it will interpret Convention No. 87 applying the rules of treaty interpretation set out in the 1969 Vienna Convention on the Law of Treaties. Although the Vienna Convention is not applicable to treaties concluded before its entry into force, it is well established that Articles 31 to 33 of that instrument reflect rules of customary international law applicable to such treaties. Some participants have argued that the tribal preparatory of Convention No. 87 should be given special consideration in its interpretation pursuant to Article 5 of the Vienna Convention on the Law of Treaties, which provides that the Vienna Convention applies to any treaty adopted within an international organization without prejudice to any relevant rules of the organization. These participants consider that the tripartite structure of the ILO has given rise to a specific practice of ascribing particular importance to the triple preparatory. The Court is not persuaded that such an interpretative approach developed through the practice of ILO bodies constitute a relevant rule of the organization that would affect the application of the customary international law rules of treaty interpretation reflected in the Vienna Convention. Consequently, no particular importance should be accorded to the travaux preparatoires beyond that envisaged under Article 32 of the Vienna Convention. In light of the above, the Court observes that it will apply the general rules of interpretation as reflected in Article 31 of the Vienna Convention and rules of supplementary means of interpretation as reflected in Article 32 of the same instrument. The Court begins by considering the ordinary meaning to give into the terms of Convention No. 87 in their context and in the light of its object and purpose in accordance with Article 31, paragraph 1 of the Vienna Convention on the Law of Treaties. At the outset, it knows that Convention No. 87 does not contain an explicit reference to the right to strike. The Court observes that the absence of an express treaty provision governing a certain issue does not necessarily mean that the issue is excluded from that treaty. Such an exclusion is only warranted when the text of all the provisions concerned, their context, and the object purpose of the treaty point to it. In the specific context of the ILO, the Permanent Court of International Justice rejected the argument that the mere absence of certain terms leads to the conclusion that particular activities fall outside the scope of ILO conventions. Article 2 of Convention No. 87 provides that workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organization concerned, to join organizations of their own choosing. Article 3, paragraph 1, further provides that workers' and employers' organizations shall have the right to draw up their constitutions and rules, to elect their representatives in full freedom, to organize their administration and activities, and to formulate their programmes. The wording of this provision indicates ways in which the rights accorded to workers' and employers' organizations are exercised. This includes not only internal negotiation and adoption of constitutions and rules, and election of representatives, but also broader powers enabling workers' and employers' organizations to decide on matters relating to their administration as well as to activities to be performed and programs to be formulated and implemented in both internal and external contexts. Article 10 defines the term "organization" as any organization of workers or of employers for furthering and defending the interests of workers or of employers. Reading these three provisions together in good faith and in accordance with their ordinary meaning suggests that under Convention No. 87, workers and employers have the right to create and join organizations for the purpose of furthering and defending their respective interests, including to organize their activities and programmes to pursue that purpose. Convention No. 87 does not include definitions of the terms "activities" and "programmes", both of which are referred to in Article 3, paragraph 1. The ordinary meaning of the term "activities", which generally encompasses any action taken to pursue an objective, and of the term "programmes", which generally means a set of planned actions pursued to achieve a result, is broad and encompasses the various dimensions of the activities and programmes of workers' organizations. The term "strike" generally means any activity consisting of temporary work stoppage or slowdown wilfully affected by one or more groups of workers with a view to enforcing or resisting demands or expressing or supporting grievances. Consequently, when article 3, paragraph 1 is read in conjunction with articles 2 and 10, it suggests that strike action is capable of falling within the ordinary meaning of the term "activities" and thus within the scope of Convention No. 87. The Court also observes that strike action itself is not explicitly excluded under Convention No. 87. the protections set out by the conventions are limited by two provisions, Article 8, paragraph 1, which states that in exercising the right provided for in this convention, workers and employers and their respective organizations, like other persons or organized collectivities, shall respect the law of the land. And Article 9, paragraph 1, which states that the extent to which the guarantees provided for in this Convention shall apply to the armed forces and the police shall be determined by national laws and regulations. These provisions show that workers, employers and their respective organizations must respect domestic law when exercising the rights provided for in the Convention, and that armed forces and the police may be deprived of the guarantees contained in the Convention No. 87 if their national legislation so provides. However, these provisions do not otherwise limit the scope of the rights protected under Convention No. 87. Thus, while Convention No. 87 sets out certain rights and related limitations, the Court considers in line with its jurisprudence, that the terms of the Convention, in their context and in light of the object and purpose of the Convention, do not allow the inference that other rights, such as the right to strike, are excluded. Regarding the object and purpose of the Convention No. 87, the third paragraph of the preamble to the Convention refers to the preamble to the Constitution of the ILO, which, I quote, "declares recognition of the principle of freedom of association to be a means of improving conditions of labour and of establishing peace," end of quote. The fourth paragraph of the preamble to Convention No. 87 also refers to the Declaration of Philadelphia, which forms an integral part of the Constitution of the ILO, and reaffirms that, I quote, "Freedom of association is essential to sustained progress." End of quote. Therefore, the object and purpose of Convention No. 87 is to guarantee freedom of association as a means of improving labour conditions and achieving sustained progress. The Court notes that strike action is one of the main activities engaged in and tools used by workers and their organizations to promote their interests and improve conditions of labor, thereby ensuring the effective exercise of the freedom of association protected under Convention No. 87. At the same time, freedom of association is instrumental in facilitating workers' organizations to take collective action to further and defend the interests of their members, including through the exercise of the right to strike. Therefore, the protection of the right to strike is in line with the object and purpose of Convention No.

87.

The Court concludes from the above analysis that the ordinary meaning of the relevant terms of the Convention, read in good faith, in their context and in light of the object and purpose of the treaty, indicates that protection of the right to strike is encompassed in the protection of the freedom of association provided for in Convention No.

87.

The Court then considers Article 31, paragraph 3 of the Vienna Convention on the Law of Treaties. With regard to paragraph 3, the Court notes that this provision is not applicable in the present circumstances, as there has been no subsequent agreement between the State parties to Convention No. 87 regarding the interpretation or the application of its provisions. The Court next turns to the subsequent practice of the parties within the meaning of Article 31, paragraph 3 of the Vienna Convention, which requires that account be taken, together with the context, of any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation. Such practice consists of any conduct of the parties in the application of the treaty after its conclusion which establishes their agreement regarding its interpretation. It is relevant to distinguish the subsequent practice of the parties depending on whether it is considered under Article 31, paragraph 3, or under Article 32 of the Vienna Convention on the Law of Treaties. In the first case, subsequent practice is of particular importance in that it constitutes objective evidence of the understanding of the parties as to the meaning of the treaty. In other words, subsequent practice within the meaning of Article 31, paragraph 3, constitutes an authentic means of interpretation aimed at establishing the existence of a common understanding of the parties regarding the meaning to be given to a treaty. On the other hand, when considered under Article 32 of the Vienna Convention, subsequent practice serves as a supplementary means of interpretation, and as such does not require evidence of the common understanding of all the parties regarding a given interpretation. The Court observes that this distinction was previously noted in 1964 by the International Law Commission in its commentary to the Draft Articles on the Law of Treaties. It follows that the two categories of subsequent practice differ in terms of both the interpretative significance attributed to each and the threshold of agreement required to establish their existence. Throughout the proceedings, participants referred extensively to the subsequent practice of the parties to Convention No. 87 as an element of its interpretation. In support of their respective arguments, participants cited various manifestations of the State Party's conduct. The first court provides an overview of the interpretation of Convention No. 87 advanced by the different ILO supervisory bodies and examines the Party's reactions to those interpretations. Within the scope of their respective functions, These bodies have had occasion to pronounce on the question whether the right to strike is protected under Convention No.

87.

In the general survey submitted to the International Labour Conference at its 43rd session in 1959, the Committee of Experts observed that, I quote, "There is a possibility that the prohibition of the right to use strikes as a means of action may run counter to article 8, paragraph 2 of Convention No. 87." Since then, it has repeatedly affirmed the existence of a relationship between the right to strike and Convention No. 87. In its 1973 general survey, the Committee of Experts stated: with reference to articles 3 and 10 of Convention No. 87, that the general prohibition of strikes constituted a considerable restriction of the opportunities open to trade unions for furthering and defending the interests of their members and of their right to organize their activities. This statement was reinforced in the Committee of Experts' 1983 General Survey, which, again with reference to articles 3 and 10 of Convention 87, stated that a general ban on strikes seriously limited the means at the disposal of trade unions to further and defend the interests of their members and their right to organise their activities. In 1992, In its observations concerning ratified conventions, the Committee of Experts took the view that although the provision of the Convention did not specifically mention the right to strike, the right accorded to workers' organizations in article 3 to organize their activities and to formulate their programs included recourse to strikes. In its 1994 general survey, the Committee of Experts stated that the right to strike is considered as an activity of workers' organizations within the meaning of article 3 of Convention No. 87. In 1996, in its observations concerning particular countries, the Committee of Experts stated that the right to strike is an intrinsic corollary of the right to organize that is protected by Convention No. 87. In its 2012 General Survey, the Committee of Experts summarised this development, noting that in the absence of an expressive provision in Convention No. 87, it was mainly on the basis of Articles 3 and 10 that the number of principles relating to the right to strike were progressively developed. The CFA, for its part, considered for a time that Convention No. 87 did not address the right to strike, while still recognizing that it was an essential element of trade union rights. In 1964, the CFA endorsed the opinion of the Committee of Experts to the effect that the absolute prohibition of strikes may constitute a considerable restriction of the potential activities of trade unions. Subsequently, in 1977, the CFA specifically considered the right to strike as being linked to Convention No. 87, and in particular to article 3 thereof. In 1998, the CFA recalled, I quote, the importance that it attaches to respect of the right to strike, which is an intrinsic corollary to the right to organize protected by Convention No.

87." It has since reiterated this position on several occasions.

In addition, since 1971, Five of the Commissions of Inquiry established under Article 26 of the ILO Constitution to examine in particular complaints concerning Members' observance of Convention No. 87 have considered that the right to strike is protected under Convention No. 87. In view of the foregoing, the Court notes that these ILO supervisory bodies have progressively recognized the right to strike as being protected under Convention No. 87, a position that they now have affirmed for decades. Their pronouncements in this regard have converged in support of such recognition. While the Court may give particular consideration to the pronouncements of treaty supervisory bodies, such pronouncements do not in themselves constitute subsequent practice in the application of the treaty which established the agreement of the parties regarding its interpretation within the meaning of Article 31, paragraph 3 of the Vienna Convention. Such pronouncements may nonetheless be relevant under that provision in the event that they give rise to or refer to subsequent state practice thereby establishing the agreement of the parties within the meaning of the said provision. Accordingly, the Court must determine whether the interpretation adopted by ILO supervisory bodies have elicited any relevant reactions from the State parties to Convention No. 87 and whether such reactions establish the agreement of the parties To this end, the Court has examined the positions expressed over time by various State parties, as and when the ILO supervisory bodies have affirmed that the right to strike is protected under that instrument. In the context of discussions within the ILO, While a significant majority of States parties to Convention No. 87 have accepted or endorsed the interpretation of the supervisory bodies that Convention No. 87 protects the right to strike, a number of States parties have over the years occasionally challenged that interpretation. The Court also notes that during the present proceedings, certain States either expressly objected to the view that the right to strike is protected under Convention No. 87, or at the very least expressed some reservations in this regard. The Court recalls that pursuant to Article 31, paragraph 3 of the Vienna Convention, the expression of conflicting positions by different parties to a treaty precludes the Court from inferring from subsequent practice in the application of the treaty that an agreement exists between the parties regarding its interpretation. Where such differences exist, the practice invoked cannot be considered as objectively establishing a common intention of the parties. Consequently, in the Court's view, the fact that a number of States parties have expressed clear opposition to the interpretation according to which Convention No. 87 protects the right to strike precludes the conclusion that there exists subsequent practice which establishes the agreement of the parties on this point within the meaning of Article 31, paragraph 3 of the Vienna Convention. Second, the Court notes that the participants have submitted examples concerning state parties' conduct at the national level regarding the application of Convention No. 87 particularly in the exercise of their legislative and judicial functions. National legislation, like decisions rendered by the courts of the State parties, may provide valuable indications for the purpose of treaty interpretation. In the present case, however, the Court considers that the examples brought to its attention do not enable it to draw any conclusions as to the existence of subsequent practice in the application of Convention No. 87, which establishes the agreement of the parties regarding its interpretation on the matter of whether the right to strike is protected under that treaty. The Court therefore considers that it is not necessary to further examine those additional elements. The Court concludes that, taken as a whole, the foregoing elements cannot constitute subsequent practice in the application of Convention No. 87 within the meaning of article 31, paragraph 3 of the Vienna Convention on the Law of Treaties, which establishes the agreement of the parties that Convention No. 87 protect the right to strike. This conclusion is without prejudice to the relevance of subsequent practice as a supplementary means of interpretation under Article 32 of the Vienna Convention. The Court next considers Article 31, paragraph 3 of the Vienna Convention on the Law of Treaties. Pursuant to the customary rule reflected in this provision, any relevant rules of international law applicable in the relation between the parties shall be taken into account when interpreting a treaty. In view of the Court, Article 31 does not necessarily require all parties to the treaty under interpretation to be bound by the by the relevant rules of international law, in order for those rules to be taken into account. A rule may be applicable in the relations between the parties if it expresses their common understanding regarding certain provisions of the treaty under interpretation. With respect to the right to strike, There is no relevant rule of international law in any other treaty which is binding upon all the parties to Convention No. 87. However, the two 1966 covenants, the International Covenant on Economic, Social and Cultural Rights, to which I shall refer as the ICESCR, and the International Covenant on Civil and Political Rights, to which I shall refer as the ICCPR, contain relevant rules of international law that concern the right to strike. Article 8 of the ICESCR and Article 22 of the ICCPR both make explicit reference to Convention No. 87. The ICESCR in Article 8, paragraph 1D, expressly protect the right to strike, provided that it is exercised in conformity with domestic laws. Importantly, paragraph 3 adds that nothing in that article shall authorize the State parties to Convention No. 87 to take legislative measures that would prejudice the guarantees provided for in the Convention. The ICCPR in Article 22, paragraph 1, provides for the right to freedom of association. It is also significant that paragraph 3 of the same article adds that nothing therein shall authorize the State parties to Convention No. 87 to take legislative measures that would prejudice the guarantees provided for in that Convention. The Court notes that while article 22 of the ICCPR refers only to the freedom of association, the Human Rights Committee has considered for more than 25 years now that the protection of the right to strike is encompassed in the protection of the freedom of association under the ICCPR. The question before the Court is whether these relevant rules are applicable in the relations between the parties to Convention No. 87. In the Court's view, a high degree of overlap between the states bound by the treaty under interpretation and those bound by the relevant rules of international law may indicate the existence of a common understanding of the parties regarding certain provisions of the treaty under interpretation. Such a common understanding may be presumed when rules contained in another treaty have been so widely adopted that they can be considered implicitly accepted by all parties to the treaty being interpreted. In determining whether this is the case, the position of those States which are not parties to the treaty containing the relevant rule or which have formulated reservations to the relevant rule are of significance. There is a high degree of overlap between the State Parties to Convention No. 87 and State Parties to both the ICESCR and the ICCPR. ICESCR has 173 State Parties and only eight State Parties to Convention No. 87 are not parties to the ICESCR. While the ICCPR has 175 State Parties, and only seven State Parties to Convention No. 87 are not parties to the ICCPR. Four State Parties to Convention No. 87 are neither parties to the ICESCR nor parties to the ICCPR, namely the Comoros, Cuba, Kiribati and Saint Lucia. In the case of the Comoros, as noted in 2025 by the Committee of Experts, exercising its supervisory functions in relation to the application of article 3 of the Convention, Following its request to this State to specify the content of its legislation on strikes, the Comoros indicated that its Labour Code is adapted to the spirit of the Convention and that it recognizes trade union rights, particularly the right of workers to strike. Regarding Cuba, during proceedings in a case before the CFA, Concerning Inter-American Convention No. 87 and involving an allegation that the right to strike was not recognized in its domestic law, Cuba repeatedly stated that there was no law or legal provision laying down any prohibition on the right to strike and that its criminal legislation did not establish any penalty for exercising this right. since it was the prerogative of trade unions to take decisions in this regard. Concerning Kiribati, in 2022, when the Committee of Experts, in exercising its supervisory functions in relation to application of article 3 of Convention No. 87, asked the State to amend its domestic legislation on the right to strike, Kiribati informed the Committee that it had subsequently amended the relevant legislation. St. Lucia has been a party to Convention No. 87 since 1980, and there is no indication that it has objected to the interpretation of the Organization's supervisory bodies that the right to strike is protected under Convention No. 87. All of the above suggests that these four States under the circumstances, understand that the right to strike is protected under Convention No. 87. Of the few reservations regarding Article 8, paragraph 1 of the ICESCR, most concern restrictions on the right to strike of public officials or essential services. While one State, namely Kuwait, has made a reservation that excludes application for this state of article 8 paragraph 1d, it has never objected to the interpretation that the right to strike is protected under convention number 87. The court notes that of the four states participating in the present proceedings that opposed the view that right to strike is protected under convention number 87, two namely Costa Rica and Switzerland, have not made any reservation or declaration regarding Article 8 of the ICESCR. The other two, namely Bangladesh and Japan, have formulated reservations or declarations regarding that provision. However, Japan's reservation does not purport to exclude the right to strike as such, while Bangladesh's declaration merely states that it will apply Article 8, I quote, "under the conditions and in conformity with the procedures established in the Constitution and the relevant legislation of Bangladesh," end of quote. In these circumstances, the Court considers that the two covenants contain relevant rules that must be taken into account when interpreting Convention No. 87. In particular, article 8 of the ICESCR and article 22 of the ICCPR assist in establishing a common understanding of the State Parties to Convention No. 87 that the protection of the right to strike is encompassed in the protection of the right of association guaranteed by Convention No. 87. In this regard, The Court notes the joint statement issued in 2019 by the Committee on Economic, Social and Cultural Rights and the Human Rights Committee, acknowledging the protections afforded by article 8 of the ICESCR and article 22 of the ICCPR. That statement recalls, inter alia, that the right to strike is a corollary to the effective exercise of the freedom to form and join trade unions. The Court concludes that an interpretation taking into account the relevant rules of international law contained in the ICESCR and the ICCPR indicates that the protection of the right to strike is encompassed in the protection of the right of association provided by Convention No.

87.

Overall, the interpretation of Convention No. 87 applying the general rule reflected in Article 31 of the Vienna Convention on the Law of Treaties leads to the conclusion that the right to strike is protected by Convention No.

87.

The Court then turns to Article 32 of the Vienna Convention on the Law of Treaties on supplementary means of interpretation. As the Court has repeatedly observed, recourse may be had to supplementary means of interpretation, such as the preparatory work and the circumstances in which the treaty was concluded, either to confirm the meaning resulting from the application of Article 31 of the Vienna Convention, or to determine the meaning when the interpretation according to Article 31 leaves the meaning of the treaty or its terms ambiguous, obscure, or leads to a result that is manifestly absurd or unreasonable. The preceding analysis of Convention No. 87 pursuant to Article 31 of the Vienna Convention, does not result in an interpretation that is ambiguous or obscure, or that leads to a result that is manifestly absurd or unreasonable. Nevertheless, the Court may have recourse to supplementary means of treaty interpretation under Article 32 to ascertain whether or not it confirms the meaning of the Convention resulting from the application of Article 31. The Court further observes that the use of the term "including" in Article 32 of the Vienna Convention indicates that the means mentioned therein do not constitute an exhaustive list. The Court may therefore have recourse to other supplementary means of interpretation that it considers relevant in the circumstances of the case. This may include any subsequent practice of the parties that does not meet the conditions of Article 31, paragraph 3 of the Vienna Convention and pronouncements of competent supervisory bodies. The Court states that in the present proceedings, it will examine the tribal travaux preparatoires of Convention No. 87, the subsequent practice of the parties, the pronouncements of the ILO supervisory bodies, and the relevant regional instruments and related jurisprudence of regional courts, as well as pronouncements by other regional bodies, as relevant supplementary means of interpretation of Convention No. 87. The Court proceeds with an assessment of the travaux preparatoires. The Convention No. 87 was adopted on 9 July 1948, following the drafting process that began in 1947. The travaux preparatoires indicate that although the right to strike, in general, was briefly mentioned at the very beginning of the preparatory work, the discussions during the preparation of Convention No. 87 negotiations appeared to have focused on the right to strike of public officials. Therefore, the intention of the drafters of Convention No. 87 with respect to the right to strike in general is unclear, and the question was left open. In the view of the Court, analysis of the travaux preparatoires leads to an inconclusive result. The Court next turns to the subsequent practice of the parties as a supplementary means of interpretation to which recourse may be had under Article 32 of the Vienna Convention. When the subsequent practice of the parties to a treaty falls outside the scope of Article 31, paragraph 3 of the Vienna Convention, it may nevertheless be taken into account, including to support or confirm the interpretation reached by the Court under Article 31 of that Convention. As a supplementary means of interpretation, customary practice therefore remains relevant even when it does not establish the agreement of the parties to the treaty. As regards how the state parties have reacted to the interpretation adopted by the ILO supervisory bodies, the Court notes that a significant majority have accepted the interpretation that Convention No. 87 protects the right to strike. This majority opinion is also reflected in the statement of 23 February 2015 issued by the Government Group, the 28 members representing governments within the Governing Body of the ILO, made on the occasion of the meeting known as the Tripartite Meeting on the Freedom of Association and the Protection of the Right to Organise Convention, 1948, No. 87, in relation to the right to strike and the modalities and practices of strike action at the national level. According to this statement, I quote: "The Government Group recognizes that the right to strike is linked to freedom of association, which is a fundamental principle and right at work of the ILO. The Government Group specifically recognizes that without protecting the right to strike, freedom of association, in particular the right to organize activities for the purpose of promoting and protecting workers' interests, cannot be fully realized." The Court concludes that the fact that a significant majority of State Parties to Convention No. 87 considers that the Convention protect the right to strike, as reflected by the subsequent practice of those State parties, is an element that must be taken into account as a supplementary means of interpretation. Indeed, it confirms the conclusion already reached by the Court under article 31 of the Vienna Convention. The Court then considers the weight that should be ascribed to the pronouncements of the ILO supervisory bodies regarding the interpretation of Convention No. 87. The Court recalls that it has previously taken account of the practice of supervisory committees established under human rights conventions. For instance, in Amadou Sadio Diallo the Court declared with regard to the Human Rights Committee that, I quote, "Although the Court is in no way obliged, in the exercise of its judicial functions, to model its own interpretation of the Covenant on that of the Committee, it believes that it should ascribe great weight to the interpretation adopted by this independent body that was established specifically to supervise the application of that treaty." The supervisory body of the ILO differs from the expert treaty bodies with which the Court has previously dealt, owing to their specific characteristics. However, the fact remains that both perform similar functions namely monitoring the proper implementation of the provisions of the Convention under their supervision. Consequently, the Court considers that it may, mutatis mutandis, ascribe great weight to the pronouncements of ILO supervisory bodies as a supplementary means of interpretation of Convention No. 87. The Court, nevertheless, deems it important to recall that it is in no way obliged, in the exercise of its judicial functions, to model its own interpretation on that of those bodies. The Court recalls that in an earlier section of the advisory opinion, it found that the supervisory bodies that monitor the application of Convention No. 87 have progressively converged in recognizing the right to strike as protected under that convention. The Court observes that the pronouncement of these bodies, which constitute a relevant supplementary means of interpretation under Article 32 of the Vienna Convention, confirm the finding reached by the Court on the basis of Article 31 of the same instrument. The Court next considers regional instruments. It begins by observing that most State Parties to Convention No. 87 are also parties to various regional human rights instruments. These instruments are relevant as supplementary means of interpretation of Convention No. 87, since they reflect the position of the State Parties to those instruments regarding the relationship between the protection of the right to strike and the protection of the freedom of association. Pronouncements of human rights courts or bodies established by these instruments are also relevant for the interpretation of such instruments. In terms of the African legal framework, the Court notes that 51 States parties to Convention No. 87 are also parties to the African Charter on Human and Peoples' Rights. Article 10 of the African Charter protects the freedom of association, and Article 15 protects the right to work. While the African Charter does not explicitly protect the right to strike, the African Commission on Human Rights and Peoples' Rights, to which I will refer as the ACHPR, has explained that the minimum core obligation of states regarding the right to work comprise, I quote, "ensuring the right to freedom of association, including the rights of collective bargaining, to strike, and other related organizational and trade union rights," end of quote. This confirms that the protection of the right to strike is encompassed in the protection of the right of free association, of the freedom of association. This interpretation is also reflected in the 2004 ACHPR Pretoria Declaration on economic, social and cultural rights in Africa, which affirms that the right to work protected under Article 15 of the African Charter on Human and People's Rights entails the right to freedom of association, including the right to collective bargaining, strike, and other related trade union rights. A similar approach may be found in the instrument of the Southern African Development Community, a regional economic organization whose 16 members are also parties to Convention No.

87.

Turning to the Arab legal framework, the Court observes that the right to strike is protected by the Arab Charter on Human Rights. Thirteen State parties to Convention No. 87 are parties to this Charter. Article 35 of the Charter provides, inter alia, that every individual has a right to freely form trade unions or to join trade unions and to freely pursue trade union activity for the protection of its interests, and that every State Party to the Charter guarantees the right to strike within the limits laid down by the laws in force. The structure of this article reflects the close connection between the right to form trade unions, which is an expression of freedom of association.

In the labour context and the right to strike.

With regard to the European legal framework, the Court recalls that 41 State parties to Convention No. 87 are also parties to the European Convention on Human Rights. Article 11 of that Convention provides, inter alia, that everyone has a right to freedom of peaceful assembly and to freedom of association with others including the right to form and to join trade unions for the protection of his interests. This provision has been interpreted by the European Court of Human Rights as also protecting the right to strike, thus confirming that the protection of the right to strike is encompassed in the protection of the freedom of association under the European Convention on Human Rights. The European Court of Human Rights has recognized the right to strike is one of the most significant means by which a trade union may protect its members' occupational interests and is thus a core element of the freedom of association protected under Article 11, so that to restrict it could, in certain circumstances, impair the very essence of freedom of association. Moreover, when interpreting the right to strike under Article 11 of the European Convention on Human Rights, the European Court of Human Rights has also taken into account Convention No. 87 and its interpretation within the ILO. Within the European legal framework, the close connection between the right to strike and freedom of association is also provided under the 1961 European Social Charter and the 1996 revised European Social Charter. Common Article 5 of both charters guarantee the right to organise as an expression of the freedom of association in the labour context, and common Article 6 explicitly protect the right to strike. 27 States parties to Convention No. 87 are also parties to the 1961 European Social Charter while 35 State Parties to Convention No. 87 are Parties to the 1996 revised European Social Charter. Thus, in accordance with the two charters, the protection of the right to strike is encompassed in the protection of the right to collective action, to which freedom of association is inherent. The right to strike is also protected by the Charter of Fundamental Rights of the European Union. The Court of Justice of the European Union has acknowledged that the protection of the right to strike is encompassed in the protection of the right to collective action, to which freedom of association is inherent. In its interpretation, the Court of Justice of the European Union stated on numerous occasions that the right to take collective action, including the right to strike, is recognized by various international instruments, including Convention No.

87.

Turning next to the Inter-American legal framework, the Court notes that the protection of the right to strike is explicitly included within the protection of the freedom of association under Article 45, paragraph C, of the Charter of the Organization of American States. 32 State Parties to Convention No. 87 are also parties to the Charter of the Organization of American States. The Additional Protocol to the American Convention on Human Rights, also known as the San Salvador Protocol, provides in Article 8, paragraph 1 that the State Parties shall ensure the right of workers to organize trade unions and to join the union of their choice for the purpose of protecting and promoting their interests, while the same paragraph 1 under subparagraph provides that State parties shall ensure the right to strike. The manner in which this paragraph is structured reflects the close connection between the right of workers to organize trade unions, which is the expression of the freedom of association in the labour context, and the right to strike. 17 State Parties to Convention No. 87 are also parties to the San Salvador Protocol. In its 2021 advisory opinion on the right to freedom of association, right to collective bargaining and the right to strike and their relation to other rights with a gender perspective, the Inter-American Court of Human Rights considered, Inter-Elia, the relationship between these rights under the Charter of the Organization of American States, the American Commission on Human Rights, and the San Salvador Protocol. The advisory opinion refers to the statements of the CFA, which recognized that the right to strike is protected under Article 3 of Convention No. 87, and concludes that freedom of association the right to collective bargaining, and the right to strike are interdependent and indivisible. Furthermore, in a 2021 judgment, the Inter-American Court of Human Rights emphasized the close links and close relationship between the freedom of association, the freedom to organize, and the right to strike. It indicated that the protection of the right to strike as an essential tool of the rights of association and freedom to organize is fundamental. The Inter-American Court also stated that without such protection, the negative dimension of freedom of association in its individual aspect could be impaired. The Inter-American Court of Human Rights cited Convention No. 87 and its interpretation by the CFA as encompassing the protection of the right to strike. A large majority of State Parties to Convention No. 87 are parties to the various regional instruments examined above. These instruments reveal a shared view of those State Parties to Convention No. 87 that the protection of the right to strike is encompassed in the protection of the freedom of association. This view, which is supported by the relevant regional jurisprudence and pronouncements, further confirms the interpretation reached by the Court in applying the general rule reflected in Article 31 of the Vienna Convention on the Law of Treaties, that the protection of the right of the freedom of association under Convention number 87 encompasses the protection of the right to strike. In view of the above, the Court considers that with the exception of the troubled preparatory of Convention number 87, whose examination leads to an inconclusive result, the supplementary means of interpretation taken into consideration by the Court in accordance with Article 32 of the Vienna Convention, confirm the conclusion reached by it through the interpretation based on Article 31, namely that the right to strike is protected under Convention No.

87.

In light of the foregoing, the Court concludes that in accordance with the customary rules of interpretation reflected in articles 31 and 32 of the Vienna Convention on the Law of Treaties, the right to strike is protected under Convention No. 87. The Court conclusion that the right to strike is protected by Convention No. 87 does not entail any determination on the precise content, scope or conditions for the exercise of that right. The Court is of the opinion that the question of whether the right to strike of workers and their organizations is protected under the freedom of association and protection of the right to organize convention 1948, number 87, is to be answered in the affirmative. I now read in English paragraph 142, which contains the operative clause of the opinion. For these reasons, the Court, one, unanimously finds that it has jurisdiction to give the advisory opinion requested; two, unanimously decides to comply with the request for an advisory opinion. 3. By 10 votes to 4, is of the opinion that the right to strike of workers and their organizations is protected under the Freedom of Association and Protection of the Right to Organize Convention, 1948, No. 87. In favour? President Iwasawa, Vice-President Sepulveda, Judges Pandali, Nottage, Charlesworth, Brand, Gomez Robledo, Cleveland, Arescu, Kladi. Against Judges Tomka, Abraham, Sue, Umeh. I shall now call upon the Registrar to read the operative part of the opinion in French.

1. à l'unanimité, dit qu'elle a compétence pour donner l'avis consultatif demandé. 2. à l'unanimité, décide de donner suite à la demande d'avis consultatif. 3. par 10 voix contre 4, est d'avis que le droit de grève des travailleurs et de leurs organisations est protégé par la Convention no 87 sur la liberté syndicale et la protection du droit syndical, 1948. For, Mr. Iwasawa, President, Madame Sebutinde, Vice-President, Messrs. Bandari, Nolte, Charlesworth, Brand, Gomez Robledo, Cleveland, Mr. Orezcute, Judge, against Messrs. Tomka, Abraham, Ms. Chueh, Mr. Ahmad, Judge.

President Iwasawa appends a separate opinion to the advisory opinion of the Court. Vice-President Sabatini appends a declaration to the advisory opinion of the Court. Judges Tomka, Abraham and Schuette append dissenting opinions to the advisory opinion of the Court. Judge Bhandari appends a declaration to the advisory opinion of the Court. Judges Nolte and Gomez Robledo append separate opinions to the advisory opinion of the Court. Judge Cleveland appends a declaration to the advisory opinion of the Court. Judge Stradi appends a separate opinion to the advisory opinion of the Court. Judge Humurd appends a dissenting opinion to the advisory opinion of the Court. The text of the advisory opinion is available as of today in typescript. It will also be available almost immediately on the Court's website. The printed text will be available in the near future. As the Court has no other business before it.

I declare the sitting closed.