Professor Harold Hongju Koh Argues for Workers’ Right to Strike at the International Court of Justice
Sterling Professor of International Law Harold Hongju Koh returned to the International Court of Justice (ICJ) in the Hague this month to present the closing argument in an advisory opinion proceeding concerning the right to strike under the 1948 International Labor Convention No. 87, concerning Freedom of Association and Protection of the Right to Organize.
Koh presented an argument on behalf of the International Trade Union Confederation (ITUC) — the world’s most representative international workers’ organization, representing 191 million workers across 169 countries — regarding the wider implications of the Court’s decision.
Watch the argument (Koh begins at 1:50:45)
The ICJ is the United Nations’ highest court, established in June 1945 by the Charter of the United Nations and seated at the Peace Palace in The Hague (Netherlands). The Court has jurisdiction both to resolve contentious disputes between member nations, and to deliver advisory opinions to answer questions referred to it by the United Nations or specialized international agencies. In this case, the Court was asked to render an advisory opinion on the question whether the right to strike of workers and their organizations is protected under Convention No. 87.
Adopted after World War II, Convention 87 is a cornerstone of international labor law, guaranteeing workers and employers the right to form and join organizations of their choosing. It does not explicitly mention strikes, but advocates have long interpreted freedom of association to include that right.
Koh, former U.S. State Department legal adviser and assistant secretary of state for human rights told the Court: “simply put, the choice before you is asymmetric. Should this Court answer the advisory question ‘yes,’ you would simply reconfirm what was the settled legal understanding until 2012, when the Employers abruptly abandoned it. … [Y]ou would strengthen industrial democracy and order by reaffirming a social compact based on peaceful bargaining between employers and workers. But should you rule the other way, Employers will claim that the legality of the right to strike must be decided from country to country, offering multiple positions on interpretive issues regarding other ILO treaties.”
Koh challenged the Employers’ claim that legal recognition of the right to strike would threaten social order. “In real life,” he observed, “the right to strike is a safety valve, a nonviolent bulwark of social peace. Every day, we are served meals and drinks, ride in cars and buses, and work in offices on equipment that is built, prepared, and maintained by committed and conscientious workers. They don’t want to strike; they want to work; to do their jobs for a fair and honest wage. But behind their toil is constant awareness that if their rights are abused, they hold the fundamental right to withhold that work in fellowship with their co-workers.”
In closing, he argued: “your decision here will affect every worker in the world. However you rule, workers will still strike. Will you be the judges who tell them that, under Convention No. 87, they no longer have that right?”
In addition to Koh, the ITUC is represented before the ICJ by a legal team that included general counsel of the ITUC Paapa Danquah and international law professors Pierre Klein of Brussels, Phoebe Okowa of Queen Mary University, University of London, and Philippe Sands of University College London. A ruling is expected in early 2026.
Koh is Sterling Professor of International Law at Yale Law School, where he has taught since 1985, served as Dean from 2004–09, and currently directs the Peter Gruber Rule of Law Clinic. He is one of the nation’s leading experts in public and private international law, national security law, and human rights. He has served four presidents of both political parties in the Justice and State Departments.
In 2009–13, he served as the 22nd Legal Adviser of the U.S. Department of State in the Obama administration, and in 2021, he returned to the Office of the Legal Adviser at the start of the Biden administration as senior adviser, the senior political appointee in that office. He is the author of many books and articles, most recently, “The National Security Constitution in the 21st Century” (Yale University Press, 2024). Koh has been awarded eighteen honorary degrees and numerous human rights awards, including the 2024 Robert A. Katzmann Award for Academic Excellence, the 2023 Raphael Lemkin Rule of Law Guardian Medal from Duke Law School, and earlier awards from Columbia Law School and the American Bar Association’s International Law Section for his lifetime achievements in international law.
