International Court Confirms A “Right To Strike” But Leaves Open Key Questions

On May 21, 2026, the International Court of Justice (ICJ) issued a long-awaited advisory opinion finding that the International Labour Organization’s (ILO) Convention No. 87 on the Freedom of Association and Protection of the Right to Organize protects the right to strike. The ICJ’s opinion settled a contentious, decade-long dispute at the ILO and may have implications for the 158 countries, including Canada, that have ratified Convention No. 87. Notably, however, the ICJ deliberately refrained from commenting on the precise content, scope, or conditions governing the exercise of the right to strike, leaving several critical questions unanswered.

Canadian courts have recognized the right to strike as protected by the Charter of Rights and Freedoms. However, that right is not absolute and Canadian courts have recently confirmed that the federal and provincial governments may restrict or prohibit strike activity where certain conditions are met.

Background

The ILO is a tripartite United Nations agency with government, employer, and worker representatives. It sets global labour standards through conventions that countries can ratify, thereby committing the country to give effect to the Convention through its domestic law.

Canada ratified Convention No. 87 in 1972. Convention No. 87 does not expressly mention a right to strike. However, the Committee of Experts, an ILO supervisory body consisting of independent legal experts, has long interpreted Convention No. 87 as including the right to strike. Employer representatives rejected the Committee of Experts’ interpretation of Convention No. 87 while worker representatives endorsed it. Since 2012, the Committee on the Application of Standards, which examines State compliance with Conventions, has avoided addressing the right to strike in its conclusions on Convention No. 87.

In 2023, the ILO’s Governing Body (which is comprised of government, worker and employer representatives) voted to refer the question of whether Convention No. 87 protected a right to strike to the ICJ, leading to the ICJ’s recent opinion.

The ICJ’s Advisory Opinion

In a 10-4 vote, the ICJ held that Convention No. 87, when interpreted “in good faith in accordance with the ordinary meaning to be given to the terms of the treaty and in light of its object and purpose,” includes the right to strike.

The ICJ focused on the link between freedom of association and the right to strike. It reasoned that the Convention’s object and purpose are to protect freedom of association and the ability of workers’ organizations to further and defend their interests, with striking constituting a core “activity” through which workers realize these aims. The ICJ also relied on interpretive materials such as related international treaties and the conduct of countries party to the convention.

The Court also emphasized that Convention No. 87 rights are not absolute. For example, Article 8(1) provides that Convention workers and employers must respect the law of the land, while Article 9(1) provides that national laws and regulations determine the extent to which Convention guarantees apply to the armed forces and the police.

Still, the ICJ declined to define the precise content, scope, or conditions for exercising the right to strike. As a result, important questions remain unanswered, including:

• Who can strike?
• Are there limits or conditions on the right to strike – e.g. political strikes, striking during the term of a collective agreement or solidarity strikes?
• Which authority defines these parameters?

The ILO has indicated that its Governing Body is expected to consider the matter further at its November 2026 session.

Application to the Canadian Context?

Advisory opinions are not legally binding, but they can carry significant legal weight. The ICJ’s opinion may influence the future work of the ILO’s supervisory bodies and the discussion on Convention No. 87 both in Canada and at the international level.

Since the Supreme Court’s ruling in Saskatchewan Federation of Labour v Saskatchewan, which cited the Committee of Experts’ interpretation of Convention No. 87 as persuasive authority, the right to strike is protected as part of the freedom of association under section 2(d) of the Canadian Charter of Rights and Freedoms. However, this right is subject to justified limits under section 1 of the Charter. Notably, the Ontario Court of Appeal recently confirmed that the federal and provincial governments may impose restrictions on strike activity where the restrictions serve an important public policy purpose – such as to address economic, health and safety, environmental, or other social concerns – and the ability to strike is replaced with a fair and balanced interest arbitration process. The Court of Appeal’s reasons suggest that Canadian governments should be given a wide latitude to regulate, and restrict, the right to strike so long as fair and effective collective bargaining systems are maintained.

Related to this, strikes have always played a different role in Canada than they do in many other jurisdictions. For example, strikes that are generally unlawful in Canada – such as political strikes, solidarity strikes, and union recognition strikes – are common in other legal systems that have informed the development of the principles applied by the ILO Committee of Experts and ICJ. It would be difficult, if not impossible, to import the legal conception of strikes under international law into the Canadian context.

Looking Ahead

FETCO represents the voice of Canadian employers at the ILO. Jackie VanDerMeulen and Tala Khoury, partners in Fasken’s Labour, Employment & Human Rights Group, are regular participants in FETCO’s delegation, advocating for Canadian employer interests on the ILO’s Committee on the Application of Standards and other ILO forums.

The extent to which the ICJ opinion will impact States that have ratified Convention No. 87 remains to be seen, particularly in countries like Canada where there is already robust jurisprudence from the courts regarding the right to strike and its limits. The practical effect of the opinion will also depend on how the ILO’s supervisory bodies – including the Committee on the Application of Standards – apply and interpret it going forward. Fasken will continue to monitor developments in this important space.

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