Extended Summary

The fact that ILO Convention 87 does not mention the right to strike in its text
does not mean that the principle of freedom of association, which is a
constitutional and founding principle, is abandoned. This led to debates in the ILO
that led to a major strike crisis. The employers’ group emphasizes that the authority
to interpret ILO conventions belongs to the International Court of Justice in line
with Article 37 of the ILO Constitution. The events of 2012 with the Employers’
group, which can be characterized as the first crisis regarding the right to strike,
cannot be underestimated. In resolving the 2012 strike crisis, the ILO resorted to
other remedies before resorting to the ICJ, following the process set out in Article
37 of the ILO Constitution. Tripartite meetings aimed at reconciling the parties to
the dispute were used during the 2012 strike crisis. It can be argued that all that
was done at that time only created a temporary atmosphere of compromise. The
March 2015 ILO Conference decided not to take any action in relation to Article
37 of the ILO Constitution on the interpretation of the right to strike under
Convention 87 in order to resolve the strike crisis. In 2014 and 2015, Tripartite
Meetings on the right to strike were held in relation to Convention 87. This
resulted in a declaration on measures to find a way out of the impasse in the
supervisory system. The strike crisis was not resolved at the 2023 ILO Conference,
although it was thought to have been resolved in 2015. The unresolved 2012 strike
crisis has now resulted in the issue being referred to the International Court of
Justice for a final decision. As the employers, who are one of the parties of the
ILO, started to damage the principle of tripartism of the ILO, making the
functioning of the ILO difficult and initiating legitimacy debates regarding the
supervisory bodies, the ILO has been in search of a solution as to whether the
right to strike can be defined within the framework of ILO Convention No. 87
Despite long-standing efforts to resolve this dispute through tripartite dialogue, no
consensus has been reached. This crisis of questioning the effectiveness of ILO
supervisory mechanisms has forced the ILO to make a choice. Therefore, for the
first time in 2023, the ILO requested an advisory opinion from the International
Court of Justice on the interpretation of the Conventions. It can be stated that the
ILO’s application to the ICJ was also made with the intention of ending this crisis
situation. The decision of the ICJ will be binding for the ILO and ILO member
states. However, only time will tell whether this decision will symbolize a transition
to a new phase in relation to all the accumulated knowledge on international labor
law. On November 10, 2023, the ILO Governing Body at its special meeting No.
349 decided to apply to the ICJ under Article 37/I of the ILO Constitution for an
urgent advisory opinion from the ICJ on whether the right to strike is protected
under ILO Convention No. 87. On November 13, 2023, the Director-General of
the ILO requested an advisory opinion by written communication to the ICJ.. The
International Court of Justice is expected to deliver its judgment in 2025. A
contrary opinion by the ICJ on nearly 70 years of jurisprudence of the ILO
supervisory mechanism would throw the system into complete disarray and
remove any legal certainty or consistency on which the principle of tripartism and
trilateralism is based. There is also the danger that the CEACR could become a
body whose effectiveness and legitimacy would be seriously undermined, with its
observations constantly open to question. The questioning of the ILO’s
effectiveness could also weaken other universal and regional mechanisms of
international labor law, which see the ILO as a predecessor in international labor
law and act in concert with the ILO in their jurisprudence. This would give
national governments more room to restrict the right to strike. A dangerous turn
of events, such as the confinement of the right to strike within the boundaries of
national law, could emerge as a possible worst-case scenario.
This study examines how the right to strike is treated in binding texts such as the
ILO Constitution and conventions. In addition to the jurisprudence developed in
line with the exemplary decisions of ILO supervisory bodies, how the right to strike
is included in international labor norms outside the ILO is discussed. The
discussions that took place in the period before the crisis, the process in 2012 and
the developments in 2023 are discussed in the light of the reports of the ILO
Committee of Experts (CEACR), the Committee on Freedom of Association (CFA)
and the Conference Committee. In this process, the nature of the relationship
between the ILO and the International Court of Justice is discussed, as well as how
this relationship will shape the strike crisis. The decision of the International Court
of Justice will determine the direction of seventy years of jurisprudence.