The Right to Strike as Customary International Law

Abstract

Despite a dramatic recent resurgence of strike activity in the United States, judges and legal scholars have had a difficult time establishing that the right to strike, which exists at a statutory level with substantial qualifications, should receive constitutional recognition. This Article pursues a different path. Using international labor and human rights doctrine, the Article examines the right to strike as an integral element of freedom of association among workers, and as such a right that has achieved the status of customary international law (CIL). It then explores possible ways to incorporate such an international right in the U.S. context, recognizing certain jurisdictional and remedial challenges.

Although the current Court is reluctant to accept international human rights law, the right to strike as CIL remains important for a number of reasons. Arguments stemming from the right to strike under international law have ongoing resonance beyond U.S. borders, as the right continues to be developed and debated on the global stage. In addition, the right may open doors to litigation for public employees in states that are more hospitable to recognizing CIL than the current majority of justices. Finally, serious discussion of the right may have immediate utility for American workers seeking a persuasive language in which to justify their growing interest in strike activities.

Keywords: labor, labor law, international labor law, international law, courts