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The right to strike is a core right entrenched in South African law, and is deeply engrained into our employment landscape. This right has however not been specifically guaranteed from an international context and is set to come before the International Court of Justice (ICJ) in a landmark request that could reshape the global understanding of the right to strike. On 10 November 2023, the Governing Body of the International Labour Organisation (“ILO”) adopted a resolution requesting the ICJ to provide an Advisory Opinion on whether the right to strike of workers and their organisations is protected under the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) (“Convention 87”), a convention which South Africa has adopted and ratified.
While the ICJ’s Advisory Opinion will not create binding law, it will carry significant persuasive weight within the ILO system and beyond, potentially influencing domestic labour legislation, industrial relations frameworks and collective bargaining strategies across jurisdictions.
This development is worth attention for employers with cross-border operations.
Background
The referral to the ICJ arises from a long-standing contentious debate within the ILO’s constituents, i.e. governments, employers’ and workers’ organisations, over whether Convention 87 implicitly protects the right to strike.
Even though Convention 87 guarantees freedom of association and the right to organise, it does not make an express reference to the right to strike. This has given rise to competing interpretations of Convention 87. In an attempt to clarify this issue, the ICJ held public hearings on 6-8 October 2025, and heard oral presentations from various stakeholders.
Although the ICJ’s opinions are not binding in the same way as judgments are, they carry a considerable interpretative authority. This means, in practice, the ICJ’s reasoning is likely to guide the ILO’s supervisory practice, influence national courts and inform the drafting and enforcement of domestic labour laws.
The Competing Positions
As it stands, there are divergent views before the ICJ. Workers’ representatives argue that the right to strike is inherent in the freedom of association and indispensable to the effective exercise of collective bargaining. On the other hand, employers’ organisations and certain States maintain that Convention 87 does not create a right to strike and/or protect the right to strike. They emphasise that the Convention’s drafters chose not to include such a right and are of the view that the ILO’s supervisory interpretations seek to extend the bounds of Convention 87 to include the right to strike and that such extension is beyond what States consented to when ratifying Convention 87.
Possible Outcomes
The Court’s opinion could fall into one of several categories, each with different consequences for employers and governments:
Affirmation of the Right to Strike under Convention 87
The ICJ may confirm that the right to strike is protected, expressly or by necessary implication under Convention 87. This view would enforce the position of trade unions globally and could prompt renewed scrutiny of national laws that restrict the right to strike.
If the Court takes this view, employers might experience heightened union activism and potential challenges to strike-limiting or prohibitive provisions.
Rejection of an implied Right to Strike
Alternatively, the Court may find that Convention 87 does not encompass a right to strike.
This decision would preserve State discretion in regulating industrial action and affirm autonomy of domestic labour laws systems. This view would be welcomed by many employer organisations seeking certainty and predictability in labour relations.
A Qualified or Balanced Opinion
The Court may recognise a general right to strike but confirm that it is subject to legitimate restrictions imposed by national law in the public interest. This approach would align with existing human rights jurisprudence which acknowledges both the right and its limits.
In practical terms, employers could expect incremental rather than radical change, but the opinion would likely influence future ligation and policy reform, especially for States that do not have national laws that regulate strikes.
Implications for Employers
Regardless of the outcome, the Advisory Opinion could have wide-ranging implications for employers operating in multiple jurisdictions, particularly where the right to strike is either prohibited and/or limited.
Depending on the jurisdiction, employers may need to revisit internal policies governing industrial action, collective bargaining agreements as well as their employee and trade union relations to ensure alignment with evolving international labour law standards.
If the ICJ affirms protection for the right to strike, government and state-owned entities may face increased pressure from unions to expand strike rights or to narrow limitations.
Employers should consider the potential for renewed trade union confidence and increased industrial action activity. Engagement with employee representatives and transparent communication strategies will be key to managing these dynamics.
Key Takeaway
The ICJ’s Advisory Opinion, expected in 2026, could redefine how freedom of association is understood within international labour law and may trigger corresponding developments in domestic legal systems and legislation.
For employers, early awareness and proactive planning will be essential. Organisations should continue to monitor developments through reputable legal sources and, where appropriate, seek legal advice on how the eventual Advisory Opinion may affect their operations and labour relations strategies.
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