International Court of Justice Recognizes the Right to Strike

On May 21, 2026, the International Court of Justice (ICJ) issued a non-binding, but significant and highly-anticipated, ruling that Convention 87 of the International Labour Organization (ILO) includes the right to strike. On its face, Convention 87 protects “freedom of association” in the workplace. The text of Convention 87 does not mention strikes, which was a deliberate feature of the text from the Convention’s negotiations. The ICJ nonetheless determined that the right to strike is an “implicit corollary” of that freedom, which is necessary to make the freedom fully effective. Critically, however, the ICJ very clearly also stated that its decision did not “entail any determination on the precise content, scope, or conditions for the exercise of [the right to strike].” 

The employer community, for its part, has long taken the position that the right to strike should be evaluated within the varied contexts of applicable national law and practice, and with due consideration of the relevant socioeconomic, legal, and other factors. 

The impact of this Advisory Opinion will unfold in the coming months. The ICJ’s ruling could directly impact employers operating outside the United States, as many countries consider ILO conventions – and the ICJ’s interpretation of those conventions – when legislating or resolving disputes in local courts. The ruling could also affect U.S. employers by increasing pressure from workers, unions and other stakeholders to conform their practices to ILO norms—even when those norms differ from U.S. law. 

What Is ILO Convention 87?

The ILO is an international agency that sets global labor standards. It has a tripartite structure, meaning that it includes representatives from government, employers, and labor. Among other things, it develops “conventions”—essentially, labor treaties that countries can ratify. It also monitors compliance with those conventions and issues opinions about how the conventions should be applied, through its Committee on the Application of Standards.

One of the ILO’s so-called “Core” Conventions is Convention 87, titled “Freedom of Association and Protection of the Right to Organise Convention, 1948.” Convention 87 was designed to protect the freedom of association and the right to organize, and is currently ratified by 158 countries, but is notably not ratified by the United States, Brazil, China, India, Singapore, and the United Arab Emirates. It says that workers and employers should be free to form and join organizations to represent them in bargaining. It also says that both sides should have “full freedom” to organize their “activities.” But it (again) makes no mention about the right to strike.

What Was the Dispute About?

The Convention’s silence over strikes has sparked fierce debate. On one hand, the employer group has argued that the Convention’s silence is intentional and deliberate, and that the scope and nature of the right to strike should be appropriately determined by national governments. On the other hand, the worker group has insisted that the right to strike is implicit and universal, and that the freedom to associate would be hollow without the right to strike.

In 2012, this debate split the ILO, and this deadlock persisted for more than a decade. In 2023, the ILO’s Governing Body submitted the issue to the ICJ, which is empowered to give advisory opinions on legal issues referred to it by organs and agencies of the United Nations, including the ILO.

What Did the Court Decide?

In a 41-page advisory opinion, the court acknowledged that Convention 87 says nothing about whether workers have a right to strike. But the court reasoned that strike rights are implied by the Convention’s terms, which explicitly protects workers’ freedom of association, which, the court reasoned, would be less effective if workers had no right to strike. Similarly, the court observed that the Convention refers to labor organizations’ “activities,” which commonly include strikes. Therefore, the court concluded, the Convention implicitly incorporates strike rights.

But the court was also careful to limit its opinion and declined to opine on “any determination on the precise content, scope or conditions for the exercise of that right.” Thus, even under the court’s framework, national governments may take varied approaches as to what the right to strike means in law and practice.

What Does the Decision Mean for Employers? 

The ruling could directly affect employers with operations outside the United States. In order to conform to the ICJ’s opinion, the 158 countries that have ratified Convention 87 may amend existing laws to enshrine the right to strike, and local courts may incorporate the opinion to recognize the right. 

In the United States and other countries that have not ratified the convention, the effect will likely be less direct. While U.S. law already recognizes the right to strike, it has its limits. Workers and their representatives may seek to leverage the ICJ’s opinion to push U.S. employers—especially those with international operations—to conform their practices broadly to ILO standards in general. These employers may face increased pressure to follow ILO interpretations of the right to strike, even when those interpretations differ from U.S. law.

The ILO Governing Body is expected to consider the court’s ruling when it meets this coming November. Employers with international operations should continue to monitor the situation.