Understanding Convention No. 87 and the Right to Strike

Newswise — On May 21, 2026, the International Court of Justice (ICJ) issued an advisory opinion that the right to strike is protected under the International Labor Organization (ILO) Freedom of Association and Protection of the Right to Organise Convention, 1948 (Convention No. 87).  

Why is the International Court of Justice Advisory Opinion a big deal?

LeClercq: “The ILO is a tripartite organization, meaning its governance is shared by governments, workers, and employers. In 2012, while I was a lawyer at the ILO, the organization’s employers group accused the ILO’s supervisory bodies of overstepping their mandate by interpreting Convention No. 87, which is silent as to the right to strike, as granting striking workers protections. The employers walked out of the annual conference and effectively shut down the internal operations, all of which require consensus among the three groups. Since then, the employers have used their objections regarding the right to strike to stall or otherwise impede the ILO’s standard setting, which has all but stopped the organization from adopting new standards and effectively supervising the standards it has. Although the decision is advisory and not binding (according to the ILO), the hope is that it will end the internal revolt.”

What does the ICJ decision mean for the United States?

LeClercq: “When the employers walked out of the conference in 2012, the U.S. administration intervened on behalf of the organization and argued that it interpreted Convention No. 87 to protect the right to strike. Contemporary U.S. trade agreements commit trade partners to the ILO’s standards, including freedom of association, suggesting that the interpretations of conventions at the ILO might have some bearing on U.S. trade commitments. To remove any doubt, when the first Trump administration negotiated the United States-Mexico-Canada Agreement (USMCA), it included a footnote stipulating that the right to strike was protected under the freedom of association standard. This ICJ decision will bolster the U.S. approach in that respect.”

Is the International Court of Justice decision controversial?

LeClercq: “Yes. The ICJ received 31 written comments and heard 23 oral arguments before rendering its decision. The ICJ has 15 judges, although one recused themself for having previously worked on the issue. On the issue of the right to strike, the decision broke down ten to four. The dissenters noted, rightfully in my view, that the text of Convention No. 87 makes no mention of the right to strike and its legislative history suggests there was a lack of consensus around protections at that time.”

What will this decision mean going forward?

LeClercq: “It is unclear. The ILO’s employers have already emphasized the non-binding nature of the decision, raising questions as to whether they intend to honor it. The Trump administration withdrew statements in support of the right to strike that had been issued by the Biden administration. However, the United States has not ratified Convention No. 87. Apart from incorporating ILO standards in its trade agreements, it is unclear whether the decision will have much of an impact on U.S. labor law – which has never complied with Convention No. 87 in full.”

Desirée LeClercq, University of Georgia Assistant Professor of Law & Faculty Co-Director of the Dean Rusk International Law Center, is a former legal officer at the International Labor Organization and a former director for labor affairs at the Office of the U.S. Trade Representative. She can be contacted for further commentary and analysis Monday-Friday from 9 a.m.-3 p.m. at (202) 360-8746; otherwise, from 6 a.m.-6 p.m. any day of the week via email at desireelc@uga.edu.