Strike Action

a question before the Committee in JB and others v Canada was whether the right to strike is guaranteed by article 22(1) of the Covenant. Since the right to strike is not expressis verbis included in article 22, the Committee took the view that it was required to interpret whether the right to freedom of association necessarily implied the right to strike, as contended by the authors of the communication. The authors argued that such a conclusion was supported by decisions of organs of the international l abour Organization (il O) in interpreting the scope and the meaning of labour law treaties enacted under the auspices of il O. The Human Rights Committee pointed out, however, that each international treaty, including the iCCPR, has a life of its own and must be interpreted in a fair and just manner by the body entrusted with the monitoring of its provisions.123

120 Korneenko et al v Belarus, Communication 1274/2004, UN Doc CCPR/C/88/ D/1274/2004 (2006), paras 7.4–7.7.

121 See Coleman v Australia, Communication 1157/2003, UN Doc CCPR/C/87/ D/1157/2003 (2006), para 6.4.

122 Kivenmaa v Finland, Communication 412/1990, UN Doc CCPR/C/50/ D/412/1990 (1994), para 9.2.

123 JB and others v Canada, Communication 118/1982, UN Doc CCPR/C/28/ D/1E1B8SC/O19Pu8b2lis(h1i9ng86:)e,BpooakraAc6a.d2em.ic Collection (EBSCOhost) - printed on 3/11/2014 5:52 PM via UTICA

in interpreting the scope of article 22, the Committee placed emphasis upon the ordinary meaning of each element of the article in its context and in the light of its object and purpose, consistent with article 31 of the Vienna Convention on the l aw of Treaties (VCl T). The Committee also took into account the travaux preparatoires of the Covenant, a supplementary means of interpretation identified in article 32 of the VCl T. it noted that in the course of drafting the iCCPR and the Covenant on Economic, Social and Cultural Rights (iCESCR), the then Commission on Human Rights based its work on the Universal Declaration of Human Rights, which does not refer to the right to strike. The Commission adopted the text of a single ‘draft covenant on human rights’, comprising 73 articles, in 1951. Two of these draft articles are relevant: draft article 16 (freedom of association) and draft article 27 (a more specific provision concerning trade unions). During the 1952 session of the Commission, inclusion of an express right to strike was not proposed for draft article 16, but was proposed and rejected for draft article 27. The General a ssembly ultimately decided to divide the single text into one on civil and political rights, and the other on economic, social and cultural rights. Draft article 16 (association) became article 22 of the iCCPR, while draft article 27 (trade unions) became article 8 of the iCESCR. The latter was amended five years later to include ‘the right to strike, provided that it is exercised in conformity with the laws of the particular country’, but no similar amendment was introduced or discussed with respect to article 22 of the iCCPR. a gainst that background, the Human Rights Committee found itself unable to deduce that the drafters intended

article 22 to guarantee the right to strike.124 The Committee went on to comment that this conclusion was corroborated by a comparative analysis of the iCCPR and the iCESCR. By expressly recognizing the right to strike in article 8(1)(d) of the iCESCR, in addition to the right of everyone to form and join trade unions for the promotion and protection of his economic and social interests in the preceding parts of article 8, the right to strike could not be considered an implicit component of the right to form and join trade unions.125

Date: 2015-02-28; view: 872

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