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15 Trinity C.L. Rev. 101 (2012)
A Freestanding Right or a Means to an End - The Right to Strike in the ILO and EU Legal Frameworks

handle is hein.journals/trinclr15 and id is 101 raw text is: A FREESTANDING RIGHT OR A MEANS TO AN
In the constellation of international labour standards, respect for freedom
of association, including the right to form and join unions, enjoys universal
status as a fundamental labour and human right. However, the right to
strike holds a more ambiguous status and the debate over what constitutes
its legitimate exercise gives rise to much controversy. While many
countries in the world have recognised such a right generally, measures
restricting its exercise are relatively frequent and wide-ranging.
The right to strike is notably absent in the text of International
Labour      Organisation     [hereinafter    ILO]      Conventions      and
Recommendations, but this has given ILO supervisory bodies leeway in
developing more detailed principles on the right to strike, derived as a
freestanding species of the right to freedom of association. The right to
strike has been recognised as an intrinsic corollary of freedom of
association,'  and   a   fundamental    right   of  workers    and   their
organisations.2 In contrast, the right to strike is explicitly stated in the
European Union Charter of Fundamental Rights [hereinafter EUCFR].
However, the European Court of Justice [hereinafter ECJ] in Viking3 and
Laval4 held that the right of unions to take collective action (with the aim
of preventing social dumping)5 must be justified as a legitimate exception
BA, LLB, BCL, DPhil Candidate, University of Oxford.
International Labour Organisation, 311'h Report of the Committee on Freedom of
Association (ILO, 1998) Case No 1954, at [405].
2 Bernard Gernigon, Alberto Odero and Horacio Guido, ILO Principles Concerning the Right
to Strike (1998) 137(4) In't Lab Rev 441, at 442.
3 Case C-43 8/05 International Transport Workers' Federation and Finnish Seamen's Union v
Viking Line ABP and OU Viking Line Eesti [2008] All ER (EC) 127; [2008] IRLR 143;
[2008] 1 CMLR 51 [hereinafter Viking].
4 Case C-341/05 Laval un Partneri Ltd v Svenska Byggnadsarbetareforbundet [2008] All ER
(EC) 166; [2008] IRLR 160 [hereinafter Laval].
s The EU defines social dumping as a practice involving the export of goods from a country
with weak or poorly enforced labour standards, where the exporter's costs are artificially
lower than its competitors in countries with higher standards, hence representing an unfair
© 2012 Mimi Zou and Dublin University Law Society

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