Striking is a fundamental right International court rules on the right to strike: why this also affects Switzerland

The International Court of Justice strengthens the right to strike as part of the freedom of association. For the time being, little will change legally for Switzerland, but the opinion could put pressure on the Federal Supreme Court's current practice.

In a legal opinion, the International Court of Justice in The Hague came to the conclusion that the right to strike is protected by international law. According to the UN judges, it is part of the freedom of association as guaranteed in ILO Convention No. 87 of 1948.

For those who only understand the point at this point: The International Labor Organization, or ILO for short, is a specialized agency of the UN that is over a hundred years old. Its aim is to promote social justice and human and labor rights. Its most important instruments include the ILO conventions. They each have a number and range from recommendations to legally binding standards.

The convention does not explicitly mention the right to strike. However, it is crucial for the court that trade unions can hardly assert their interests if they are not allowed to strike effectively.

Importantly, the opinion is not binding. However, it can carry weight worldwide because states and courts can take such opinions into account when interpreting labor and fundamental rights.

A dispute has been simmering within the International Labor Organization for years. Trade unions see the right to strike as the core of freedom of association. Employer representatives and some states, on the other hand, denied that the aforementioned ILO Convention includes the right to strike. As the parties were unable to reach an agreement, the ILO asked the International Court of Justice for clarification.

This is more than just fodder for lawyers. Those who see the right to strike only as a national regulatory issue give states a lot of leeway for restrictions. Those who see it as part of a fundamental international right, on the other hand, set a stronger lower limit: employees must be allowed to exert pressure collectively if they want to achieve better working conditions.

Yes, in Switzerland the right to strike is part of the freedom of association under national law. The Federal Constitution allows strikes in principle. In theory, Switzerland is therefore in line with the UN Court.

In practice, however, Switzerland remains a special case. Strikes rarely take place here. According to SRF, almost every second employee is subject to a collective employment contract. Such contracts often contain a peace obligation, i.e. a ban on strikes for the duration of the contract.

In addition, there is a tradition of social partnership and comparatively high wages. SRF refers to international data: Between 2014 and 2023, Switzerland had an annual average of just two strike-related days lost per 1,000 employees. According to the statistics cited, this figure was 102 in France, 107 in Belgium and 108 in Canada.

The Swiss Federation of Trade Unions expressly welcomes the report in a press release. At the same time, the trade unions criticize the fact that Switzerland took the opposite position before the International Court of Justice.

Official Swiss representatives had argued that the aforementioned ILO convention did not include the right to strike. According to the SGB, Switzerland has thus sided with a small minority of states.

The case law of the Federal Supreme Court is particularly controversial for the trade unions. To date, the court has also examined strikes to determine whether they are "more drastic than necessary". The SGB calls this a problematic prohibition on excessive measures.

Its argument: a strike must be allowed to generate economic pressure. If courts examine whether a strike was "necessary" too closely in retrospect, the law loses some of its effect.