Winning the Right, Losing the Protection?

On May 21 2026, the International Court of Justice delivered its advisory opinion on the interpretation of ILO Convention No. 87, addressing whether the Convention protects a right to strike. At first glance, the reaction was predictable. Within international labour law circles, this was widely celebrated as a long-awaited clarification of a decades-long institutional dispute within the International Labour Organization. The Court affirmed that the right to strike can be derived from the Convention’s protection of freedom of association and the activities of trade unions.

At the surface, this decision appears to mark a significant consolidation of international labour rights. However, what is less visible is what the Court chose not to do. Alongside its recognition of the right, the Court did not undertake a comprehensive delimitation of its content, scope, or permissible limitations. While the opinion identified broad principles governing the exercise of trade union rights, it left substantial operational questions to subsequent interpretation..This gap matters. In international law, the recognition of a right is one part of the legal architecture. The other is the set of boundaries which determine the actual enforceability of the right itself. This separates a right from being merely declaratory or enforceable.

This article argues that the approach of the ICJ creates a structural tension. By affirming the existence of a right while leaving aspects of its practical operation unresolved, the Court may have redistributed interpretive authority across multiple legal systems. Domestic Courts and legislators will inevitably shape its application, but so too will ILO supervisory organs, human rights bodies, and international tribunals that continue to elaborate the contours of the right to strike. The result is a paradox: a judgment celebrated for strengthening labour rights may, in practice, generate uneven protection across jurisdictions.

Recognition Without Delimitation: What Exactly Did The Court Decide?

The ICJ’s advisory opinion resolves a long standing dispute within international labour organization: whether Convention No. 87 on Freedom of Association and Protection of the Right to Organise includes a right to strike.

For decades, this question has divided employers’ and workers’ interpretations of the Convention. Employer groups maintained that the treaty text contains no particular reference to strike action, and that its drafters deliberately avoided including such right. Contrastively, trade union bodies have argued that the effectiveness of freedom of association implies protection of strike action as an imperative instrument of collective bargaining.

The Court ultimately sided with the latter view. It held that the Convention’s protection of freedom of association and the activities of trade unions can also encompass the right to strike.

At that level, the judgment is doctrinally significant. The ICJ resolves a persistent conflict and places judicial authority behind the reading of Convention No. 87 that improves the legal position of trade unions within international labour law.

Having recognized the existence of a right to strike under the Convention, the Court did not undertake a detailed delimitation of its practical scope or permissible limitations. Importantly, however, this reflected the institutional framing of the request itself. The ILO Governing Body did not ask the Court to determine the full content of the right to strike, but whether such a right could be derived from Convention No.87. .

What follows from this is not legal uncertainty alone but interpretive dispersal. Once a right is recognised without comprehensive delimitation, different institutions–domestic and international–begin participating in the gradual process of defining its practical boundaries.

The Early Consequences of Incomplete Delimitation

What makes the ICJ’s approach significant is not only its institutional context, but its early effects. Although the advisory opinion remains recent, initial reactions already illustrate how the Court’s incomplete delimitation of the right is being absorbed into legal arguments across different interpretive settings.

One early illustration comes from employer-side responses in national labour systems. In Nigeria, the Nigeria Employer’s Consultative Association (NECA) has already framed the refusal of the Court to define the limits and content of the right to strike as reinforcing the view that industrial action regulation remains under the purview of domestic sovereignty and national labour legislation. Yet, domestic legal systems will not be the only sites of future development. The advisory opinion itself relies heavily on the subsequent practice of States, ILO supervisory organs, human rights committees, and international human rights courts, all of which have already contributed to shaping the contours of the right to strike. Rather than displacing international interpretation, the opinion may invite further elaboration through these existing mechanisms. The more difficult question is whether these multiple interpretive sites will converge toward coherence or generate uneven applications of the right in practice.The decision of the Court to affirm the existence of a right without defining its operational content does not remain neutral once it enters domestic legal discourse. Instead, it becomes a resource for argument as different actors are able to draw from the same judgment to support different regulatory conclusions, depending on their institutional position.

In contexts where strike regulation is heavily mediated through statutory restrictions particularly in sectors such as education, healthcare and essential public services, this interpretive flexibility has immediate implications. It allows domestic actors to present domestic actors to present restrictive frameworks not as departures from international standards, but as in line with a judgment that leaves those standards deliberately undefined.

The result is a subtle but important shift in how international legal authority operates. Rather than producing convergence around a shared understanding of the right to strike, the opinion may reinforce existing national approaches under the appearance of international endorsement. This does not amount to full fragmentation as the judgment is too recent and its doctrinal reception too early for definitive conclusions. But it does reveal the mechanism through which divergence can occur: ambiguity at the international level followed by interpretive consolidation at the domestic level.

What is at stake therefore is not whether the Court weakened the right to strike. It is whether the absence of delimitation allows the meaning of that right to vary more than its celebratory reception initially suggests.

Conclusion: Postponing Delimitation

Ultimately, the ICJ did not weaken the right to strike, nor did it leave its future entirely to domestic political climates. What the opinion resolved was the existence of the right, while leaving important questions concerning its practical operation to continued elaboration across domestic and international interpretive bodies.

Whether this process produces coherence or fragmentation remains uncertain. What remains unfinished is the more difficult task of delimitation: defining how a universally recognized right will operate consistently in practice.