The Lady Doth Protest Too Much, Methinks - The Right to Strike, International Standards and the Supreme Court of Canada

This article rejects the claim - maintained, until very recently, before the ILO by the International Organisation of Employers (JOE) - that the right to strike is not protected by international law. The author notes that in advan- cing this position, the IDE focused on the interpretation of ILO Convention 87 on freedom of association, which, though it does not specifically address the right to strike, has been read as implicitly including such a right by the ILO's independent Committee of Experts. In his view, regardless of whether or not Convention 87 includes a right to strike, that right is clearly protected by a number of other international law sources, among them the ILO Constitution, the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights. He also describes how the European Court of Human Rights, in developing a normative basis for the right to strike in recent ground-breaking decisions, has relied on a wide range of treaties, including ILO Convention 87. The author emphasizes that the ques- tion has important implications not only for constitutional litigation in Canada (where both the federal and provincial governments have been criticized by the ILO supervisory bodies for their frequent resort to back-to- work legislation), but for basic labour rights globally (such as in Cambodia, where the recent killing of striking workers has underlined the need for universal standards). The paper concludes with a postscript in which the author reflects on two key developments that occurred shortly before this issue of the CLELJ went to press: the Supreme Court of Canada's recognition, in the Saskatchewan Federation of Labour case, of a right to strike under section 2(d) of the Charter of Rights and Freedoms guaranteeing freedom of association; and the concession by the IOE, less than a month after the Supreme Court's decision, that ILO instruments do in fact protect the right to strike.