The "Right to Strike" in International Law
We introduce this thesis by declaring that the international organisation charged with the responsibility for leading the global effort on labour and related social justice is unquestionably the ILO. Like the WTO, ISO, IMO, for example, who lead the global efforts on multilateral trade, quality infrastructure and maritime matters respectively, the ILO also establishes, and "polices" global compliance to international labour laws. It is this international-convention-creating facet of the organisation which often puts it in the public's cross-hairs.
One of the bedrock Conventions of the ILO is the 1949 Convention 87 on Freedom of Association and Protection of the Right to Organise (C87). The Convention entered into force on July 4, 1950 and has remained one of the more quoted, referenced and utilised text in international labour law. According to the ILO constitution, members of the body have a set timeline to ratify Conventions and bring them before their legislature, or inform the ILO of reasons why ratification was not done. Like most Caribbean states, Dominica has ratified C87.
The ILO has a supervisory mechanism in place which examines States' compliance with ratified Conventions and any challenge States may be experiencing in bringing Convention into law in their jurisdictions. Key in the supervisory mechanism is the Committee of Experts on the Application of Conventions and Recommendations, CEACR.
Article 3 of C87 states:
Workers' and employers' organisations shall have the right to draw up their constitutions and rules, to elect their representatives in full freedom, to organise their administration and activities and to formulate their programmes.
The public authorities shall refrain from any interference which would restrict this right or impede the lawful exercise thereof.
Somewhere towards the close of the first decade of the 21st century, CEACR reported to the Governing Body of the ILO that it has interpreted Article 3 as having created a "Right to Strike." Apart from questioning the vires of CEACR to interpret the law, concerns were raised about the interpretation itself. Does the text of Article 3 even hint to such a right?
Firstly, the caption of C87 establishes the span of coverage of the Convention: workers and employers are free to associate, and their right to organise is protected. To say that association and organisation amount to a right to strike is absurd! If they do, then one may argue that they also create a right to absenteeism, late arrival to work, picketing, sabotage, and all the REALPOLITIK in the modern workplace. But let's examine the operative words in Section 1 of the Article a bit closer. 1. "The right to draw up their constitution and rules"; 2. "To elect their representatives"; 3. "To organise their administration and activities"; 4. "To formulate their programmes."
Are we then to interpret these operate words to mean that whatsoever is contained in these constitutions, rules, activities, and programmes
MUST be upheld as legal, permissible, fundamental, inherent and inalienable "RIGHTS?"
Does the right to carry a firearm include the right to shoot? The license makes shooting conditional. C87 does not do so with striking.
Many practitioners see the debate on the subject as highlighting a possible weakness or omission in the text of the Convention, rather than implying something which cannot be properly implied. The right to strike may be found in several jurisdictional statutes or Constitutions, and that's where the right truly belongs. Some of us can realistically imagine that had the right been explicitly written into C87, several states would probably not have ratified the instrument.
Secondly, when read in context with Article 2, it would seem that C87 does not "create" a right to "organise", but seeks to "protect" such a "right" created elsewhere, most likely in national laws. Now, this is very important. It has led many to postulate that the same should probably be done to the right to strike.
Rather than spend several years on the subject [even wanting to send it to the ICJ in The Hague], the tripartite community should consider an amendment to the text of Article 3 with a view to "protecting the right to strike", where the latter exists in national laws. It's time to turn the leaf!