June 29, 2026
On May 21st, 2026, in a matter of great relevance for employment law at both local and international levels, the International Court of Justice (“ICJ” or “the Court”) issued an Advisory Opinion (“Opinion”) in which it concluded that the right to strike of employees and their organizations is protected under the Freedom of Association and Protection of the Right to Organize Convention of 1948 (“Convention No. 87”) of the International Labor Organization («ILO»).
The request for this Opinion was submitted to the Court by the International Labor Office, one of the ILO’s three principal bodies, responsible for assisting and coordinating the work of both, the International Labor Conference and the Governing Body, which serve as the organization’s highest deliberative body and executive body, respectively.
The foregoing pursuant to Article 65 of the Court’s Statute, which enables the Court to issue advisory opinions on any legal question submitted by authorized bodies.
The request specifically posed the following question:
“Is the right to strike of employees and their organizations protected under the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87)?”
As background, the request stems from a longstanding disagreement within ILO over whether Convention No. 87 recognizes the right to strike as part of the freedom of association right and, therefore, whether such right is protected under this convention.
In this regard, the Court emphasized that the question submitted for its consideration was specific and limited exclusively to determine whether the right to strike is protected under Convention No. 87, without addressing matters related to the specific scope, conditions, or limitations for its exercise.
In its analysis, the Court expressly acknowledged that Convention No. 87 does not contain an explicit reference to the right to strike. Nevertheless, it held that the absence of such reference does not preclude the right from falling within the scope of protection afforded by the Convention.
Accordingly, based on an interpretation consistent with the rules set forth in the Vienna Convention, the Court concluded that the provisions of Convention No. 87 regarding the right of trade unions to organize activities and defend the interests of the employees include the right to strike.
The Court considered that the ILO’s supervisory bodies have developed progressive and consistent construction recognizing the right to strike as part of the protection afforded by Convention No. 87. Likewise, the Court highlighted that regional instruments, judicial precedents, and various statements issued by State Parties reflect a shared view that the freedom of association protected by Convention No. 87 also encompasses protection of the right to strike.
This Opinion issued by the Court establishes a historic precedent for the international labor system and will have a significant impact on future discussions regarding freedom of association and collective bargaining.
In Mexico’s case, this advisory opinion reinforces interpretations favoring employees and trade unions regarding collective labor rights, particularly regarding the right to strike, within the context of the labor reform and the obligations assumed under the USMCA.
This newsletter was prepared with the support of Eduardo Hale García.
The labor and employment lawyers of Basham, Ringe y Correa, S.C., remain for any further comments or questions.
Sincerely,
Jorge A. de Presno Arizpe
jorgedepresno@basham.com.mx
David Eugenio Puente Tostado
dpuente@basham.com.mx
Luis Antonio Álvarez Cervantes
lalvarez@basham.com.mx