ILO Standards in the European Court of Human Rights: Ognevenko V Russia

12 | International Union Rights | 26/2 FOCUS | THE ILO AT 100 On the centenary celebrations of the International Labour Organisation (ILO), it is timely to address the influence of this venerable institution, not only as regards the labour standards protected under national law, but also on regional organisations. The latter is important, given the significance of regional human rights instruments and their role as a measuring stick for the legitimacy of domestic employment law and its practical application. At one point, Virginia Mantouvalou was able to point towards (and celebrate) an ‘integrated approach’, whereby ILO standards were accepted and applied by the European Court of Human Rights (ECtHR)1, particularly in cases relating to slavery, servitude, forced or compulsory labour under Article 4 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (as amended), which is more colloquially known as the European Convention on Human Rights (or ECHR). The ECtHR has however been highly selective in its integration of labour standards relating to freedom of association under Article 11 of the ECHR2. In this respect, the judgment of the Court on 20 November 2018 in Application No. 44873/09 Ognevenko v Russia is notable for its ready adoption and application of ILO standards relating to the right to strike, which led to a finding of a breach of Article 11. Freedom of association is, of course, deeply embedded as a constitutional principle within the ILO, being integral to its tripartite structure. Reliance on collective worker and employer organisations for the operation of the ILO was recognised in both the original Treaty of Versailles in 1919 and the Declaration of Philadelphia in 1944, as well as the subsequent Declarations of 1998, 2008 and 2019. ILO supervisory bodies such as the Governing Body Committee on Freedom of Association (CFA) and the Committee of Experts on the Application of Conventions and Recommendations (CEACR) have asserted that freedom of association also entails a right to strike. Nevertheless, this connection has been challenged by the employers’ group at the ILO, culminating in the infamous ‘walkout’ from the ILO Conference Committee on the Application of Standards in 2012 when it was alleged that the CEACR exceeded their competence in continuing decades of jurisprudence stating that a right to strike is implicit in ILO Convention No. 87 on Freedom of Association and the Protection of the Right to Organise3. At the time, the employers’ group stated that their actions should be construed as a challenge to the influence of ILO standards regarding the right to strike in human rights litigation4. Before the Canadian Supreme Court with respect to the Canadian Charter of Rights and Freedoms and in the collective complaints procedure before the European Committee of Social Rights (ECSR) under the European Social Charter, the International Organisation of Employers cited the 2012 employers’ rebellion as a reason to disapply previously established ILO jurisprudence, although ultimately those arguments were unsuccessful5. The ECtHR had to consider comparable submissions (made this time by the UK Government) in Application no 31045/10 National Union of Rail, Maritime and Transport Workers (RMT) v UK, to which the Court responded by stating that recent events at the ILO did not undermine that institution’s standards relating to the right to strike, but in the instant case refused their application (and those established under the European Social Charter) relating to secondary action6. Up until the RMT judgment in 2014, other Chamber judgments had demonstrated an appreciation that a right to strike (and the rights of individual strikers) could be protected under Article 11, notably in various cases against Turkey. While one judgment delivered in favour of the Ukraine appeared anomalous, commentators were able to identify a trend towards recognition of ILO standards7. In 2015, an apparent truce acknowledging the significance of the right to strike was engineered between employer and worker representatives, which was endorsed by governments and the International Labour Office. However, it remained unclear whether the previous deference to ILO jurisprudence on the right to strike would be restored. For example, the judgment of the ECtHR in Application no 2451/16, Association of Academics v Iceland made no mention of ILO standards when upholding the conduct of...

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