Statement on the International Court of Justice’s confirmation of the right to strike under Convention 87

The Department of Employment and Labour welcomes the International Court of Justice's historic confirmation that the right to strike is inherently contained in International Labour Organisation (ILO) Convention 87 (1948) on Freedom of Association and Protection of the Right to Organise. The Court delivered this landmark advisory opinion on 21 May 2026, resolving a long-standing disagreement among ILO constituents that had persisted for over three decades.

South Africa ratified this Convention in 1995, shortly after the advent of democracy, affirming our commitment to international labour standards and the protection of workers' fundamental rights. Flowing from this foundation, the right to strike in South Africa is a fundamental constitutional right guaranteed to every worker under Section 23(2)(c) of our Constitution.

The ICJ was seized of this matter following a dispute that had paralysed the ILO's supervisory machinery. For over thirty years, Employers' Group consistently challenged the authority of the ILO's Committee of Experts on the Application of Conventions and Recommendations (CEACR), which had long held that "the right to strike is an intrinsic corollary to the right to freedom of association and that, as such, it is recognized and protected by Convention No. 87."

The dispute intensified in 2012 when the Employers' Group walked out of the Committee on the Application of Standards at the International Labour Conference, objecting to expert engagement and demanding a tripartite political discussion. This impasse ultimately led to the ILO's request for an advisory opinion, the first such request in nearly a century. South Africa was among the first states to support the Workers' argument that the Right to Strike is protected under Convention No. 87, notwithstanding its absence from the treaty's express text, as a necessary element of trade union activities and programmes.

Although the ICJ's advisory opinion, which sought to resolve the dispute between Workers and Employers, in particular, is non-binding, it still carries immense legal authority and shapes international labour law. The Court's ruling provides clear guidance on the interpretation of Convention No. 87 under Articles 31 and 32 of the Vienna Convention on the Law of Treaties, which require interpretation "in good faith in accordance with the ordinary meaning to be given to the terms … in their context and in the light of its object and purpose."

At the domestic level, the decision reaffirms our country's constitutional commitment to protect the rights of workers. As such, this landmark interpretation further affirms a principle long upheld by workers' rights defenders worldwide: that the ability to withdraw labour is indispensable to genuine freedom of association.

In reaching this conclusion, the ICJ drew significantly on legal arguments and historical context advanced by, amongst others, the Republic of South Africa. South Africa demonstrated exceptional leadership in placing the original intent and ordinary meaning of Convention 87 before the Court, showing that the right to strike is not a separate or optional provision but an essential component of the Convention's protective framework.

Through its detailed submissions, South Africa highlighted how the drafting history, the structure of the Convention, and subsequent ILO supervisory practice all point to the same conclusion: without the right to strike, trade union action loses its core efficacy. The Court's endorsement of this reasoning represents a major victory for workers everywhere, particularly in contexts where collective bargaining is weak, or repression is high.

We extend our deep appreciation to the Government and legal team of South Africa for their principled and rigorous advocacy. Their contribution will resonate in labour rights jurisprudence for decades to come, reinforcing the rule of law and the dignity of work across all regions and sectors.

Finally, the ICJ's ruling now provides clear guidance to all States, employers, and courts: ratification of Convention 87 entails an obligation to protect the right to strike. We hope that all States will align their domestic law and practice with this authoritative interpretation. The ICJ's advisory opinion will also resolve the long-standing impasse that has frustrated the ILO's supervisory mechanism for many years, allowing the Committee on the Application of Standards to resume its vital work without further obstruction.

South Africa remains committed to standing on the side of the world's most vulnerable, advancing the tenets of international law, and supporting the rules-based multilateral system.

For media inquiries, please contact:

Teboho Thejane

Departmental Spokesperson

082 697 0694/ [email protected]

-ENDS-

Issued by: Department of Employment and Labour

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