Introduction
The right to strike occupies a central place in labour relations. It is one of the principal means by which workers and their organizations may, in lawful circumstances, defend their economic and social interests.
A major development has now arisen at the international level. The International Court of Justice is expected to deliver an Advisory Opinion on whether the right to strike is protected under the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).
This matter is not remote from Ghana. It has direct relevance to the interpretation of Ghana’s current Labour Act, 2003, Act 651, and to the drafting of the proposed new Labour Bill.
Background to the International Dispute
In November 2023, the Governing Body of the International Labour Organization referred a long-standing interpretive question to the International Court of Justice. The question concerns whether Convention No. 87 protects the right to strike.
The ILO Governing Body recorded that there was a serious and persistent disagreement within the ILO’s tripartite constituency on the interpretation of Convention No. 87 with respect to the right to strike. It further recalled that the dispute arose from disagreement among the Organization’s tripartite constituents concerning whether the right to strike is protected under Convention No. 87.
The Governing Body also noted that ILO supervisory bodies have consistently observed that the right to strike is a corollary of the fundamental right to freedom of association.
In legal reasoning, a corollary is a conclusion or principle that follows naturally from another established principle. The argument is therefore straightforward: if workers have the right to form and join organizations for the protection of their interests, those organizations must also have effective means to pursue those interests. The right to strike is one of such means.
The Question Before the International Court of Justice
The question referred to the International Court of Justice is:
“Is the right to strike of workers and their organizations protected under the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87)?”
The Advisory Opinion will therefore address a fundamental question of international labour law: whether the protection of freedom of association under Convention No. 87 includes, by necessary implication, the right of workers and their organizations to undertake strike action.
By circular letter dated 7 May 2026, the Registry of the International Court of Justice notified States and organizations authorized to participate in the advisory proceedings that the Court will read its Advisory Opinion in open court on Thursday, 21 May 2026, at 3:00 p.m., at the Peace Palace, The Hague.
This confirms that the dispute has reached a decisive stage. The international labour community is awaiting a legal pronouncement that may clarify the status of the right to strike under Convention No. 87.
Ghana’s Current Labour Law Position
Ghana’s Labour Act, 2003, Act 651, recognizes strikes and lockouts, but regulates them within the framework of industrial dispute settlement.
Under Act 651, industrial action is not treated as an unrestricted right. Parties are generally required to comply with the statutory dispute-resolution processes before resorting to strike or lockout action. These processes include negotiation, mediation, arbitration and the dispute-resolution functions of the National Labour Commission.
This means Ghanaian law does not deny the right to strike. Rather, it regulates how and when the right may be exercised.
The Act also provides protection for lawful industrial action. Where a strike is lawful, the employment relationship should not be treated as terminated merely because a worker has participated in that strike. The law therefore recognizes that lawful strike action forms part of regulated industrial relations.
However, the limitation in the current framework is that the right to strike appears mainly as part of the machinery for resolving industrial disputes. It is less clearly stated as a substantive incident of freedom of association and collective bargaining.
That distinction is important.
If the right to strike is treated only as a procedural consequence of failed dispute resolution, it may be interpreted narrowly. But if it is understood as part of freedom of association, then the law must protect not only the steps leading to a strike, but also the broader autonomy of trade unions to represent workers, bargain collectively and act effectively in defence of workers’ interests.
Why the ICJ Advisory Opinion Matters to Ghana
The pending ICJ Advisory Opinion matters to Ghana for three main reasons.
First, it may clarify the international legal status of the right to strike under Convention No. 87.
Second, it may influence how national courts, labour administrators, employers, trade unions and dispute-resolution bodies understand the relationship between freedom of association and industrial action.
Third, it provides an important opportunity for Ghana to align the proposed Labour Bill with contemporary international labour standards.
The question is therefore not merely whether Ghana already regulates strikes. The deeper question is whether Ghana’s new labour legislation should expressly recognize the right to strike as part of freedom of association and collective bargaining, while maintaining reasonable and lawful regulation.
How the New Labour Bill Should Address the Issue.
As Ghana awaits the ICJ Advisory Opinion, the proposed Labour Bill presents a timely opportunity to review and modernize the existing strike provisions of Act 651. The objective should not be to weaken industrial order, but to ensure that the regulation of strikes is consistent with freedom of association, collective bargaining, social dialogue and orderly industrial relations.
At this stage, it may be premature to propose exact statutory language before the ICJ Advisory Opinion is delivered. The more prudent approach is to identify the key legal and policy issues that Ghana’s labour law reform process should consider after the Court has given its opinion.
It is my honest opinion as member of the Labour Bill Drafting Committee, that the clause on strikes and lockout should be reviewed with attention to the following issues.
- Clear Recognition of the Right to Strike
The new Labour Bill should clarify the legal status of the right to strike within Ghana’s labour relations framework.
The purpose should not be to present strike action as an unrestricted right, but to ensure that lawful industrial action is properly understood as part of democratic labour relations. Clear recognition would help avoid the impression that strikes are merely tolerated as disruptions, rather than regulated as part of the legitimate means through which workers and their organizations defend employment-related interests.
- Link with Freedom of Association and Collective Bargaining
The Bill should consider the relationship between the right to strike, freedom of association and collective bargaining.
If the ICJ confirms that the right to strike is protected under Convention No. 87, Ghana’s labour law reform process should reflect that development in a careful and balanced manner. The right to strike should not be viewed only as the final stage of dispute settlement. It should also be understood as connected to the broader ability of trade unions to organize, represent, bargain and act collectively in defence of workers.
- Protection Against Victimization
The Bill should strengthen protection against victimization where workers participate in lawful industrial action. A right that can easily be punished is not a meaningful right. The law should therefore ensure that workers are not dismissed, discriminated against, intimidated, transferred, demoted, or otherwise penalized merely because they participated in lawful strike action.
This does not mean that unlawful conduct during industrial action should be protected. Rather, it means that participation in lawful and properly regulated industrial action should not expose workers to retaliation.
- Reasonable and Proportionate Procedures
The law may regulate strikes. Indeed, orderly industrial relations require clear procedures, notice requirements, dispute-resolution steps and institutional safeguards.
However, procedural requirements should not be so technical or burdensome that they defeat the effective exercise of the right. The Bill should therefore ensure that procedures for lawful strike action are clear, reasonable, proportionate and capable of practical compliance.
The objective should be to promote industrial peace without reducing the right to strike to a purely theoretical entitlement.
- Documentation, Accountability and Responsible Exercise
The new Labour Bill should also encourage disciplined industrial relations practice. A lawful strike should not be spontaneous or disorderly. It should be preceded by proper documentation of the dispute, attempts at negotiation, correspondence, internal authorization, notice and compliance with statutory procedures.
This is important because the legitimacy of strike action depends not only on the existence of the right, but also on how responsibly the right is exercised.
Conclusion
The pending Advisory Opinion of the International Court of Justice may become a major reference point in international labour law. It concerns a fundamental question: whether the right to strike forms part of the protection guaranteed by Convention No. 87 on freedom of association.
For Ghana, the issue is timely. As the country considers a new Labour Bill, there is an opportunity to clarify and modernize the law on strike action. The law must balance industrial peace with effective freedom of association. It must regulate strikes, but it must not weaken the right beyond practical usefulness.
For Organised Labour, the position should be clear: the right to strike must be lawful, disciplined and responsibly exercised; but it must also be protected as an essential guarantee of workers’ collective voice.
Kenneth K. Koomson is a labour and industrial relations practitioner, trade unionist, and policy commentator. He holds a BSc in Human Resource Management, an LLB (Bachelor of Laws), and an LLM (Master of Laws) in Alternative Dispute Resolution from the University of Ghana, Legon. A Chevening Scholar, he studied International Labour Relations at Ruskin College, Oxford, UK.