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The Right to Strike in International Law

The Right to Strike in International Law

Author: Jeffrey Vogt; Janice Bellace; Lance Compa; K.D. Ewing; John Hendy QC; Klaus Lörcher; Tonia Novitz
Publisher: Hart Publishing
ISBN: 9781509955923

Published In: September 2021
Format: Paperback
Jurisdiction: U.K. ? Disclaimer:
Countri(es) stated herein are used as reference only
Hardback Edition ISBN: 9781509933556

List Price: RMB 400.29

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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.

PART I. AN INTRODUCTION

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?

PART II. 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

IV. Conclusion

PART III. 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

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

IV. Legislation

V. Judicial Opinion

VI. Conclusion

PART IV. 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

14. Conclusion

I. The Return of the Strike

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