The Right to Strike in International Law

Employment / Labour Law

The Right to Strike in International Law

Edited by Jeffrey Vogt · Janice Bellace · Lance Compa · Keith Ewing · John Hendy QC · Klaus Loercher · Tonia Novitz
Hart Publishing March 2020

Specifications

ISBN-13
9781509933556
Publisher
Hart Publishing
Publication
March 2020
Format
Hardback
Jurisdiction
U.K. ? Countri(es) for reference only

Also available as

Paperback

Details

This monograph is 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 apparent aim is to sow sufficient doubt as to the existence of an internationally protected right so that governments might have a free hand to limit or prohibit the right to strike at the national level while still claiming compliance with their international obligations. Already, some governments have seized on the employers' arguments to deny this right in law and in practice.

The book is the only exhaustive analysis as to the existence of the right to strike under international law, and its findings, based on deep legal research, dispel any doubt on the matter. There is simply no credible claim that the right to strike does not enjoy international protection; indeed, the authors argue that it has attained the status of a customary international law norm.

Table of Contents

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
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
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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