ILO Governing Body, 349^th bis special session 

10 November 2023

Action to be taken on the request of the Workers’ group and of 36 governments to urgently refer the dispute on the interpretation of Convention No 87 in relation to the right to strike to the International Court of Justice for decision in accordance with article 37(1) of the Constitution

GB.349bis/INS/1

1^st EU statement

Chair,

I have the honour to speak on behalf of the European Union and its Member States, namely, Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, The Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden and the candidate Countries Republic of North Macedonia* and Montenegro*, the potential Candidate Country Georgia,  the EFTA countries of Norway and Iceland, members of the European Economic Area, align themselves with this statement.

1. We thank the Office for the background report and for the valuable additional notes which will facilitate the discussions during this special meeting of the Governing Body.
2. The EU and its Member States, and the EFTA countries Iceland and Norway, sent on 14 July 2023 a letter to the Director General requesting that, as a matter of utmost importance, an item be placed on the agenda of the Governing Body concerning the referral to the International Court of Justice of the dispute relating to the interpretation of ILO Convention nº 87 on Freedom of Association and Protection of the Right to Organise in relation to the right to strike.  
3. In this letter we indicated that, after more than a decade of failed attempts to find a solution, having legal clarity has become a matter of urgency.
4. We are grateful that a special session has been convened to address this issue.
5. We again commend the Office for the impartial and transparent way in which the process has been conducted with the two screening group meetings and the two debriefings to obtain clarification. We appreciate the inclusive approach by which the Office involved and informed all constituents and provided the possibility of submitting written comments.
6. We recognize the Committee of Experts on the Application of Conventions and Recommendations as an independent body established by the International Labour Conference to analyse how Conventions are applied by member States, determining their legal scope and meaning. These terms gained tripartite constituent approval in 2014.
7. We also recognise that the Committee of Experts on the Application of Conventions and Recommendations provides non-binding opinions and recommendations. These serve as guidance for national authorities, grounded in the legitimacy, impartiality, experience, and expertise of the Committee's work.
8. We are in agreement with the Office that the advisory opinions of the ICJ are judicial statements on the legal questions submitted by authorized organizations and that, in the case of the ILO, these advisory opinions are endowed with binding effect because art 37(1) provides so.
9. In view of the unresolved dispute over the interpretation of the Convention n°87, we shall refer the matter to the ICJ, as stated by art 37(1) of the ILO’s Constitution.
10. Our purpose in submitting the case is to ensure legal certainty through an ICJ judicial settlement. Simultaneously, we aim to uphold the current authority of the Committee of Experts, as agreed in 2014 by the Governing Body, and to safeguard the supervisory system.
11. Chair, we are ready to decide on the adoption of a resolution on the referral of the questions to the ICJ.  We look forward to hearing from other constituents and to reaching a decision on the amendment to the decision point tabled by a large, cross-regional group of governments.

Thank you, Chair.

[*the Republic of North Macedonia, and Montenegro* continue to be part of the Stabilisation and Association Process.]