Internationale Arbeitsorganisation, quo vadis? Einige Gedanken zur Debatte um das Streikrecht und das Mandat des Sachverständigenausschusses
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In 2012, the Employers' Group at the International Labour Conference refused to adopt and discuss a list of 25 member states of the International Labour Organization (ILO) that stood accused of very serious breaches of ILO Conventions. The employers argued that Convention No. 87 on Freedom of Association and Protection of the Right to Organize, 1948, did not contain any specific provision on a right to strike and that the Committee of Experts was not mandated to interpret the Convention in this way. At the 2013 Labour Conference, the delegates did once again manage to agree on a list of countries. But they did so only on the basis that issues concerning the right to strike were not discussed. Moreover, the employers' representatives repeatedly spoke against an »ILO right to strike«. They seemed particularly alarmed by the fact that some courts (for instance, the European Court of Justice, the European Court of Human Rights and the Constitutional Court of South Africa) had considered the jurisprudence of the Committee of Experts in their decisions. The persistence of this debate, as well as its heat and vehemence, justifies a consideration of the main points at issue and, if possible, a contribution towards achieving some objectivity. Focusing on the right to strike, this article aims to demonstrate that the Committee of Experts was clearly mandated for the interpretation at issue here. Since this interpretation is, however, not a binding one, the ILO members states could still override it. This would require a consensual contrary practice or agreement by the member states. None of these requirements has been met yet. We argue that the manner in which the current dispute is solved may well set the pattern for the ILO's future role as a champion of decent working conditions. The matter should, therefore, be referred to the International Court of Justice (ICJ) to obtain an authentic interpretation of the relevant provisions of Convention No. 87. This article sets out the legal basis for a potential ICJ ruling on the issue.