The Right to Strike in International Law
By: Jeffrey Vogt, Janice Bellace, Lance Compa, K D Ewing, John Hendy QC, Klaus Lörcher, Tonia Novitz
This monograph was originally developed as a direct response to the claim made by members of the ‘Employers Group’ at the 2012 International Labour Conference, namely that the right to strike is not protected in international law, and in particular by ILO Convention 87 on the right to freedom of association.
The group’s apparent aim was to sow sufficient doubt as to the existence of an internationally protected right so that governments might seek to limit or prohibit the right to strike at the national level while still claiming compliance with their international obligations. In consequence, some governments have seized on the employers’ arguments to justify new limitations on that right.
The Right to Strike in International Law not merely refutes this claim but is the only complete and exhaustive analysis on this subject. Based on deep legal research, it finds that there is simply no credible basis for the claim that the right to strike does not enjoy the protection of international law; indeed, the authors demonstrate that it has attained the status of customary international law.
1. Understanding the International Labour Organization (ILO)
I. An ILO Primer
2. The Ill-Founded Challenge to the Right to Strike in 2012
I. The Showdown at the 2012 International Labour Conference
II. Why Then?
III. And Now?
A REBUTTAL: ON THE QUESTION OF MANDATES
3. The ILO Committee of Experts has a Mandate to ‘Interpret’ ILO Conventions, not the Constituents
I. A Brief History
II. The Mandates of ILO Supervisory Bodies Establish No Hierarchy Among Them
III. The Committee of Experts and the Interpretation of Conventions
A REBUTTAL: THE INDISPUTABLE CASE FOR THE RIGHT TO STRIKE
4. The Rules of Interpretation: The Vienna Convention on the Law of Treaties (VCLT)
I. Applicability of the VCLT
II. VCLT Rules of Interpretation as Customary International Law
III. ILO Practice
5. The Ordinary Meaning of Convention 87 Supports the Existence of a Right to Strike
6. The Object and Purpose of Convention 87 Supports the Existence of a Right to Strike
7. The Subsequent Agreement and Practice between the Parties Concerning Convention 87 Supports the Existence of a Right to Strike: ILO Jurisprudence
I. Some History
II. The Right to Strike is Enshrined in Convention 87
III. The ILO Constitution
IV. The Right to Strike in Subsequent ILO Instruments
V. 2015 Tripartite Meeting on the Right to Strike
8. The Subsequent Agreement and Practice between the Parties Concerning Convention 87 Supports the Existence of a Right to Strike: Beyond the ILO
I. United Nations
II. Council of Europe Instruments
III. The Right to Strike and the European Union
IV. The Inter-American System
V. African Charter on Human and Peoples’ Rights
VI. The Right to Strike and Trade Arrangements
VII. High Court Cases Since 2012 Affirm the Right to Strike
9. Other Methods under Article 31 of the Vienna Convention on the Law of Treaties (VCLT) Support the Existence of the Right to Strike
I. ‘Any Relevant Rules of International Law Applicable in the Relations between the Parties’ (Article 31(3)(c) VCLT)
II. ‘A Special Meaning Shall be Given to a Term if it is Established that the Parties So Intended’ (Article 31(4) VCLT)
III. Further Interpretation Principles
IV. Inadmissible ‘Creative Interpretation’?
10. Though Unwarranted, Article 32 of the Vienna Convention on the Law of Treaties (VCLT) also Supports the Existence of the Right to Strike
I. Resort to the Preparatory Work of Convention 87 is Unwarranted
II. Application of Article 32 VCLT would Not Affect the Outcome were it Applied
11. The Right to Strike is Recognised as Customary International Law
I. The United Nations
II. The ILO
III. National Constitutions
V. Judicial Opinion
WHERE TO FROM HERE?
12. Settling the Dispute: The International Court of Justice?
13. The Aftermath
I. Impact on ILO Supervisory System
II. The Impact Outside the ILO
I. The Return of the Strike
International Journal of Constitutional Law Volume 18, Issue 2, July 2020 ISSN: 1474-2640, EISSN: 1474-2659 …
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