ILO principles and jurisprudence of the supervisory bodies regarding purely political strikes versus protest strikes

The right to organize is enshrined in ILO Convention No. 87 and Convention No. 98.Footnote ⁷ According to the ILO Declaration on Fundamental Rights and Freedoms 1998, freedom of association is one of the core rights at work.Footnote ⁸ Thus, the right to organize is considered a fundamental right.

According to the ILO Declaration on Fundamental Rights and Freedoms 1998, the conventions regarding core labor rights are binding on all member states, even if they have decided not to ratify these conventions. Member states obligate themselves by virtue of ILO membership to respect and realize these fundamental principles, including freedom of association.Footnote ⁹

Both ILO committees – The Committee on Freedom of Association (hereinafter CFA) and the Committee of Experts on the Application of Conventions and Recommendations (hereinafter CEACR) recognized the right to strike as a fundamental right derived from freedom of association.Footnote ¹⁰

Even though the CFA has stated that workers do not have the right to engage in purely political strikes, the committee held that the right to strike is not limited solely to economic objectives.Footnote ¹¹ Instead, the committee views the right to strike as a broad tool that can be utilized not just for collective relations but also during social struggles and acknowledged the possibility of recognizing protest strikes.Footnote ¹²

Moreover, ILO principles provide that workers and their organizations should be able to express their dissatisfaction regarding social matters.Footnote ¹³ Thus, the committee recognized the overlap between economic and social issues.Footnote ¹⁴

ILO principles indicate that unions can engage in strikes aimed at criticizing governmental economic and social policies.Footnote ¹⁵

In this vein, the committee stated that: ‘Organizations responsible for defending workers’ socio-economic and occupational interests should be able to use strike to support their position in the search for solutions to problems posed by major social and economic policy trends which have an impact on their members and workers in general.Footnote ¹⁶ The committee also stressed that ‘the occupational and economic interests that workers defend through the exercise of the right to strike do not only concern better working conditions or collective claims of an occupational nature, but also the seeking of solutions to economic and social policy questions’.Footnote ¹⁷

It should be noted that the recognition of protest strikes, which involve criticism of governmental policy, has long been established in the jurisprudence of ILO committees.Footnote ¹⁸ For instance, in a case from 2006, where Romania introduced legislation restricting trade unions’ actions and a strike against the legislation was considered illegal by the Romanian authorities, the CFA recognized the legitimacy of the strike action.Footnote ¹⁹

In the Federation of Oil Workers case in 2021 concerning Brazil (case no. 3327), the ILO clarified the extent to which a strike, which involved a large protest of the public and consumers regarding political issues and policy, should be recognized under the freedom of association.Footnote ²⁰ The case involved a complaint against the government of Brazil presented by a trade union (and was connected to a reform in the oil field). The complaint involved the imposition of fines for exercising the right to strike. Following a strike in 2018 that was called by several trade unions in the petroleum sector, the state and the oil company filed an action for injunction, alleging it was a political strike and had political and ideological motivation. The Brazilian Supreme Court issued a decision ordering the trade union to refrain from holding a strike on the grounds that the strike was political. Nevertheless, the ILO held that such a strike involving socio-economic policy that concerns the workers was legitimate as a protest strike.

Hence, the ILO stated that holding a strike to express discontent regarding certain regulations affecting the workers’ broad interests or agendas should be considered legitimate. The decision to call the strike had an objective of reducing fuel and cooking gas prices, resuming domestic fuel production and the cessation of the importation of petrol and other oil derivatives. The strike was also an action against privatization. In this case, the collective actions were part of a large social movement, driven by citizens and consumers, which did not undermine the legitimacy of the strike and supported it. It should be noted that the ILO saw the legitimacy of the strike in this case as stemming from the fact that it was part of a large social movement that included citizens, consumers and the public, and the strike was issued against the background of mass social protests and enjoyed large support. The committee stated that trade unions should be able to express in a broader context their dissatisfaction regarding economic and social matters affecting their members’ interests,Footnote ²¹ even if there are no direct implications of the relevant issue to a certain workplace.Footnote ²² The principles set by the CFA ensure that the right to strike is not only applied inside industrial relationships but could encompass various kinds of workers’ dissatisfaction related to economic and social policies.Footnote ²³

The committee stressed that under the parameters of freedom of association, protest strikes criticizing economic and social state policies, and mainly those that are part of social protests, should be considered legitimate.

The Federation of Oil Workers case is one of a line of cases in which the ILO finds union protest activity and strike (that also involves other civil society actors) as protected under international law. This line of cases holds that protest strikes are legitimate, even though not connected to a specific workplace. These cases involve a large social protest against a governmental policy with the participation of other civil groups and the public. Civil groups such as consumers, NGOS and other interest groups participated in demonstrations and actions against the governmental policy, and it followed a collaboration of unions and workers with consumers. Moreover, these lines of cases, including the Brazilian case, did not involve strikes that opposed a policy that had a direct connection to a specific sector or connected to a specific workplace, but rather involved wider interests of the public in general regarding prices of goods and services in the market (as a result of the rising prices of oil and gas). It emphasized that when the objective of the strike is to reduce the cost of living and the prices of goods and services, and is aimed at avoiding importation of resources such as oil, or involves strike action against the privatization itself, it would constitute a legitimate protest strike. Furthermore, the committee stressed that not only a strike against the implications of privatization or of importing resources on the working conditions would be considered legitimate, but also a strike against the privatization policy itself or the import of resources would be considered legitimate.

Since the Brazilian case, the CFA has addressed some cases related to allegations of political strikes. In the case of the KCTU in Korea, adopted in 2024, the committee examined the narrow interpretation of possible strike objectives.Footnote ²⁴ The case focused on the punishment of unionists for participating in political rallies and a general strike, which were aimed at amendments to labor legislation.

As in the Brazilian case, the committee held that, in its view, trade unions responsible for defending workers’ socio-economic interests should be able to use, respectively, strike action to support their position in the search for solutions to problems posed by social and economic policy trends.Footnote ²⁵ The committee pointed out in the KCTU case that the restrictive approach to the legitimate purpose of strikes has implications for freedom of association, as illustrated by the example of disciplinary actions taken against unionists leading a strike concerning government policies on railway privatization. The committee held that limiting the legitimate purpose of strikes to issues directly related to an industrial dispute deprives workers of an essential means of action to protect their legitimate interests, in relation to the government’s economic or social policies.Footnote ²⁶

Since 2021, one of the major cases of the CFA regarding political strikes was the BKDP case focused on Belarus, where the Committee urged the release of detained unionists and criticized restricting peaceful protests and industrial actions connected to political events. In the BKDP case, the committee examined attempts to repress peaceful participation in protests of a political nature by the BKDP union.Footnote ²⁷ The strike in Belarus in 2020, where the participants put forward political demands (related to the holding of presidential elections), but also added economic ones to the political issues, was considered illegal.Footnote ²⁸ On September 11, 2020, the Minsk Regional Court ruled that the strike was illegal for its political nature. Many participants faced administrative penalties for taking part in unauthorized mass events, and employees who expressed their intent to join the strike were dismissed. The Supreme Court’s ruling, which upheld the lower court’s decision, represented a setback to the fundamental right to strike.Footnote ²⁹

The CEACR discussed the allegations of the BKDP about extreme forms of violence aimed at suppressing peaceful protests and strikes, as well as about the detention and imprisonment of workers in detention after the presidential elections in August 2020.Footnote ³⁰

In 2021, the CFA expressed deep concern about the events in Belarus and noted the deterioration of the situation with respect to trade union rights. The case involved the government’s claims that the strike and protest activities of the trade unions were events of a political nature, not related to the field of labor. The committee considered the protest activities and strike as legitimate.Footnote ³¹

In 2025, the CFA discussed the case again.Footnote ³² The Belarusian government repeated its claim that the 2020 strikes and protests were declared out of political motives and therefore were illegal.Footnote ³³ The committee recalled its request to ensure that workers were protected against any act of discrimination for having peacefully exercised the right to strike to defend their interests, which not only concern economic demands but also the seeking of solutions to economic and social policy questions that affect their members’ interests.

In 2025, the CEACR recalled that it urged the government to immediately release all trade union leaders and members arrested for participating in peaceful assemblies or for exercising their civil liberties pursuant to their legitimate trade union activities.Footnote ³⁴

It should be noted that the Belarusian case involved strikes which were also followed by large protests and demonstrations of both workers, political parties and citizens. In this case, the committee went beyond its previous decision in the Brazilian case to consider a strike that was not directly connected to economic and social issues and had partial political goals (concerning the results of elections) as legitimate. Thus, a strike, in which the demands were partly related to changing the results of elections and the identity of the head of state and issues of fighting corruption, was considered legitimate based on workers’ freedom of expression and civil liberties. This case advances even more the previous Brazilian case, to protests based on agendas of workers regarding broad political issues and anti-corruption, which were considered legitimate. Thus, mixed strikes – which have both economic motivation and political ones related to workers’ interests and agendas – would be considered legitimate by the ILO, even when some issues do not involve socio-economic policy. Following ILO standards regarding protest strikes versus purely political strikes, the Korean KCTU case and Federation of Oil Workers case, it could be claimed that protest strikes against socio-economic policy, which are part of a large social struggle, should be recognized as legitimate. Moreover, following the Belarusian case, mixed strikes, which have both economic motivation and political ones that concern workers’ interests and agendas, beyond socio-economic policy, would be considered legitimate by the ILO.

The application of ILO principles regarding political and protest strikes should be advanced. As a matter of principle, ILO standards, which recognize protest strikes as legitimate expressions of workers’ freedom of association, should be adopted by local states and courts. In accordance with ILO standards, it is important to distinguish between purely political strikes and protest strikes. Purely political strikes are those that make a political statement focused solely on governmental policy with a lack of direct connection to the workers’ interests.Footnote ³⁵ In contrast, protest strikes seek to promote political ideas while still relating to the concerns of workers. Whereas purely political strikes have been deemed illegitimate, protest strikes are acknowledged by the ILO as a valid form of action and should be applied by domestic courts as such.Footnote ³⁶

The status of ILO principles and global constitutionalism

1. (1) Global constitutionalism and the jurisprudence of supervisory bodies concerning the right to strike

Global constitutionalism advocates for constitutional principles in the international legal sphere.Footnote ³⁷ Global constitutionalism includes strands of thought according to which some features of the status quo of global law are considered constitutional and as having a normative superior status over the law in domestic states.Footnote ³⁸ Global constitutionalism is then a framework for world law. It is a vision that encompasses a universal legal and political order that includes fundamental rights.Footnote ³⁹ Global constitutionalism also claims that the respective principles, institutions and mechanisms can and should be used as tools to inspire strategies for the improvement of the legitimacy of the international legal order and their special status in relation to the domestic state.Footnote ⁴⁰ Moreover, global constitutionalism relates to the reconstruction of treaties of international organizations as constitutions of those organizations.Footnote ⁴¹

The ILO has established standards governing collective action, encompassing both conventions and recommendations from its supervisory bodies, including the CEACR and the CFA. A significant consideration is how these standards could underpin the concept of global constitutionalism. The right to organize is explicitly articulated in ILO international treaties, specifically Conventions 87 and 98, thereby asserting its binding nature in international law. This indicates that both the right to organize and the right to collective bargaining are formally acknowledged within ILO Conventions and hold the status of recognized treaties. Additionally, these rights are affirmed in the ILO Declaration on Fundamental Principles and Rights at Work 1998 as core labor rights.Footnote ⁴² By designating the right to organize as a fundamental right within this declaration, it acquires a distinct normative status, which could serve as a foundation for constitutionalism and a special status within domestic law.

The second relevant element of the ILO standards pertains to the recommendations put forth by ILO committees regarding the right to strike. The right to strike is regarded as a fundamental right based on the principles established by these committees. The CEACR stated that the right to strike is part of the freedom of Association,Footnote ⁴³ and the CFA declared that striking was a fundamental right.

It should be noted that, even though the right to strike has not been explicitly included in Convention No. 87, the ILO committees have regarded it as derived from the right to organize.Footnote ⁴⁴

1. (2) ILO principles regarding the right to strike, constituting a norm of special status

The issue at hand is whether ILO standards concerning strikes can be regarded as possessing a special status of a superior norm, thereby serving as a foundation for global constitutionalism. While the recommendations provided by supervisory bodies were originally intended as guidelines, we claim that ILO standards related to the right to strike may be recognized as establishing a special status, which would confer upon them significant implications, as a basis for global constitutionalism.Footnote ⁴⁵

The primary focus of the examination, then, is the status of ILO principles (that affirm the freedom to strike as a fundamental right). A key inquiry is whether the principles established by ILO committees regarding the right to strike can be considered as a supreme norm with special authority. In this respect, we consider whether ILO principles, according to their characteristics, can be regarded as having a special status.

The ILO standards regarding the right to strike, as established by the ILO committees, could indeed be recognized as a superior norm with special status and authority. Several arguments can be made for recognizing a special status for recommendations pertaining to the right to strike and base their role in global constitutionalism. There are a few reasons for this proposition.

First, the status of ILO standards is derived from the fact that approximately 200 countries are ILO members, with most industrialized nations endorsing its principles. Consequently, ILO standards regarding the right to organize and strike can be viewed as possessing a distinct significance.Footnote ⁴⁶ These standards are generally accepted as reference points for human rights globally and serve as a foundation for regulatory frameworks in many countries worldwide.Footnote ⁴⁷ The ILO’s standard-setting efforts help shape universal values.

Second, the right to strike has been enshrined in international and regional human rights instruments, trade agreements and the constitutions of nearly 100 countries.Footnote ⁴⁸ Thus, the status of ILO standards regarding the right to strike is based on the fact that, following these standards, the right to strike has been included in many constitutional documents and within the legal system of local states.

Third, the moral authority of the ILO committees’ recommendations is widely acknowledged as a rule, and their decisions are regarded as critical guiding principles that states follow. This recognition is reflected in the incorporation of the committee’s opinions and recommendations within national legislation, international agreements and judicial rulings.

On the international level, the European Court of Human Rights (hereinafter ECtHR) used ILO standards and the interpretation of ILO committees as a basis for the construction and interpretation of the European Convention on Human Rights.Footnote ⁴⁹ The ECtHR used these means to create a common standard across a number of international obligations.Footnote ⁵⁰ The ILO standards were also used to create a common ground for many different states with distinct ideologies within Europe. For instance, in the Demir Footnote ⁵¹ case, the jurisdiction of ILO committees was used as a reference point for recognizing a right to collective bargaining.

Moreover, bilateral and regional trade agreements have incorporated ILO conventions and standards regarding freedom of association.Footnote ⁵² Some of these agreements can result in fines or suspension of trade benefits when national laws that conflict with those international rights are not enforced. By 2011, the United States sent notice to Guatemala to attribute a dispute under the Central American Free Trade Agreement for the failure to enforce its labor laws concerning freedom of association.Footnote ⁵³

Fourth, the establishment of the ILO provided a unique tripartite forum, and the legitimacy and special status of its standards, as a rule, arise from a collaborative governance framework that amplifies the voices of three key stakeholders: employees, employers and governments.Footnote ⁵⁴ Therefore, the legitimacy and obligatory characteristic as a rule of ILO standards, from an institutional perspective, is rooted in the organization’s specific structure, with its internal dynamics facilitating the formulation of balanced and meaningful regulations regarding the right to strike. While it can be argued that subordinating local laws and constitutional norms to the principles of the ILO poses certain challenges, this recognition could complicate the acceptance of legislation that imposes broad restrictions on strikes, including political strikes.

Nevertheless, the ILO’s structure, which involves tripartite negotiations among representatives of workers, employers and governments, results in balanced rules regarding strikes. This justifies the incorporation of ILO standards into domestic legal systems. The tripartite negotiation process is reflected in the discussions held by the Committee on Freedom of Association and in debates surrounding the interpretation of conventions related to the right to organize. This framework is viewed as a collaborative approach rather than a top-down regulation.Footnote ⁵⁵ The principles established through this process accommodate the diverse interests of the three parties involved in labor disputes. Consequently, these rules should serve as a foundation for assessing the regulation of the right to strike and its status within other constitutional frameworks. Although these points seem to relate more to the organization’s structure than to the substance of the norms, the ILO’s cooperative framework also helps ensure that the content of these norms reflects widely accepted perspectives among the three stakeholders in labor relations.

Fifth, ILO standards on freedom of association have been included in important documents. Businesses and human rights guidelines incorporate the principles of the ILO regarding strikes and freedom of association.Footnote ⁵⁶ Thus, the OECD Guidelines for Multinational Enterprises and UN Guiding Principles on Business and Human Rights both refer to the ILO standards regarding freedom of association. For instance, the extent of an enterprise’s duty under OECD Guidelines or the UN Guiding principles and the assessment as to whether the duty was breached would be ascertained through a report to the jurisprudence of the ILO.Footnote ⁵⁷

Sixth, the standards concerning the freedom of association and the right to organize have achieved significant normative status, as acknowledged in the 1998 Declaration. This right is binding on all ILO member countries, regardless of whether they have ratified the related conventions, giving it a unique standing. According to the ILO Declaration of Principles and Fundamental Rights from 1998, the right to organize and its related rights are considered core rights that apply even to countries that have not ratified Conventions 87 and 98. As a result, the interpretations of these conventions by committees and their decisions gain greater validity and become obligatory.Footnote ⁵⁸

Even if the interpretations of ILO principles by the committees are not formally acknowledged, they still hold a special authority and can inspire judicial decisions. Accordingly, the recognition of Conventions 87 and 98 in international law, combined with the special status of ILO principles and the decisions made by ILO committees, creates a foundation for the potential development of internationally based constitutionalism. In this vein, ILO norms regarding the right to organize are dealt with through a complaints process arranged by the Committee on Freedom of Association, which requires governments to take corrective action and to keep the ILO informed of their responses. The fact that the Committee on Freedom of Association is authorized to interpret and fulfill the right to organize, which is considered core labor right, and the fact that member states are obliged by this right even without ratifying the relevant convents, creates a special status to the committee’s recommendations and the standards it sets regarding the right to organize and the right to strike.Footnote ⁵⁹

Seventh, the ILO principles regarding the right to organize could be perceived as part of a universal order, and the ILO Declaration of Fundamental Rights and Freedoms at work as a global constitutional document that the states are subject to.Footnote ⁶⁰ The ILO principles regarding the right to organize and strike could be considered as fundamental rights with special status and could be a basis for global constitutionalism. As a result, states should assert a wide scope of the right to strike in general and apply the ILO standards regarding the right to a political strike in particular.

Eighth, national, regional and international courts often turned to the ILO standards, citing the ILO committee’s jurisprudence as a reference for the nature of the right to strike as a fundamental right.Footnote ⁶¹ Thus, the ILO standards are often considered as having a superior normative status.

For instance, at the national level, in 2015, the Supreme Court of Canada based its recognition of strike as a constitutional right, derived from the right to freedom of association (included in the Canadian Charter), on ILO standards.Footnote ⁶² The court also made direct reference to the jurisprudence of ILO committees in its judgment regarding collective bargaining, and used this ILO jurisprudence as a basis for the interpretation of Article 2(d) of the Canadian Charter of Rights and Freedoms.Footnote ⁶³ Thus, the Supreme Court of Canada recognized the normative supremacy of both the right to collective bargaining and the right to strike as constitutional rights based on the ILO Committee’s principles. The ILO standards were also regarded as a superior norm, giving rise to recognition of fundamental rights in the European Union. For instance, in the case of Demir and Baykara v. Turkey, the EctHR leaned on the jurisprudence of the ILO committees in order to recognize the right to collective bargaining as a fundamental right.Footnote ⁶⁴

Moreover, there is evidence of actual state practice in different countries adopting standards deriving from Convention 87. This is expressed in a few practices. First, ILO Convention 87 has seen strong global adoption, with over 150 countries ratifying it (e.g., 157 as of mid-2023). In 2024, only 29 Member States have not ratified Convention No. 87 yet.Footnote ⁶⁵ In this respect, it should be noted that at the regional level, all countries in Europe have ratified Convention 87, while in America, there are only two Member States that have not yet ratified Convention No. 87. Three African States have not ratified Convention No. 87.

Second, countries adopted the principles of Convention 87, including the right to strike in their legislation and policy. Various changes were made in the last few years by different governments and parliaments in the areas of legislative developmentsFootnote ⁶⁶ and policy initiatives aimed at fulfilling the norms of Convention no. 87.Footnote ⁶⁷ Following the fact that the recommendations and standards of ILO committees regarding the right to strike can be regarded as having a special status, it can be posited that the moral authority and legitimacy of recommendations lend support to their deployment as a foundation for global constitutionalism.

1. (3) The current developments at the ILO concerning the status of the right to strike and its significance

The right to strike is a crucial component for employees to exercise their right to organize; however, the past decade has witnessed controversy surrounding the status of the right to strike within ILO institutions. This period has also been marked by ambiguity concerning the established jurisprudence of the supervisory bodies related to the status of the right to strike.Footnote ⁶⁸The dispute started in June 2012, when the ILO employers’ group challenged the recognition of the right to strike and interrupted the proceedings of the annual international conference.Footnote ⁶⁹

The employers’ group challenged the existence and scope of the right to strike, as well as the status of the recommendations and decisions of the supervisory bodies regarding the right to organize. The main argument of the employers’ group was that the supervisory bodies lacked the mandate to interpret the conventions and, therefore, did not have the authority to interpret the convention in a way that recognized the right to strike as a fundamental right. In this regard, the employers’ group claimed that, according to the ILO’s Constitution, only the International Court of Justice, based in The Hague (hereinafter ICJ), or a tribunal which had never been established, has the authority to interpret the conventions.Footnote ⁷⁰

Following this dispute, the ILO Governing Body (hereinafter GB) adopted on November 10th, 2023, a resolution by which it decided to request the ICJ to render an advisory opinion on the question: Is the right to strike protected under Convention 1948 (No. 87).Footnote ⁷¹

Following this resolution, the ILO submitted a request to the ICJ for an advisory opinion.Footnote ⁷² Thus, in 2023, the ILO approached the ICJ in a petition according to Article 37(1) of the ILO Constitution, regarding the status of the right to strike.Footnote ⁷³

Referring a dispute to the ICJ by GB carries significant implications. An ICJ referral can enhance the effectiveness of the ILO’s supervisory machinery and the ILO standards, as its recommendations are often incorporated into national legislation and other international instruments. The ICJ’s ruling carries significant weight and provides legitimacy to the ILO’s supervisory findings and conclusions. It should be noted that a ruling from the ICJ that approves ILO standards regarding the right to strike would strengthen the status of these standards.

In this vein, it seems that the ICJ should (and is likely to) reassure the jurisprudence of the ILO regarding these standards, in a way that would recognize the legitimacy of the existing ILO principles regarding the right to strike, as has been developed by the ILO committees.

There are a few reasons for this proposition. First, the claims of the employers’ group referred only to the jurisprudence of the CEACR regarding the right to strike, undermining its authority to interpret norms regarding the freedom to strike.Footnote ⁷⁴ Nevertheless, the employers’ claim did not relate to the jurisprudence of the CFA, which independently recognized the status of the right to strike and the ability to exercise it in different situations. This jurisprudence should still be prevalent then and upheld by the ICJ.

Second, the employers’ group specifically stated that the CEACR does not have the legitimacy to interpret the conventions, based on the claim that the committee does not represent tripartism, and that it is only the tripartite constitutions that should decide upon the meaning of ILO standards.Footnote ⁷⁵ However, it should be noted that the CFA includes representatives from the tripartite constitutions of the ILO, and therefore, its jurisprudence should be regarded as prevalent.

Third, in the absence of effective interpreting bodies over the years, the existing committees evolved into bodies that set ILO standards and interpreted the conventions.Footnote ⁷⁶ In this respect, it is important to notice that despite the Employers’ assertion that the CEACR has been a purely technical body for the past century, the CEACR evolved to be a primary supervisory body facilitated by ILO tripartite constituents and, as such, developed necessary interpretation functions.Footnote ⁷⁷

Fourth, it should be taken into consideration that in the request for advisory opinion, the ILO itself mentioned that the supervisory bodies have constantly observed that the right to strike is a corollary of the fundamental right to organize.Footnote ⁷⁸

Moreover, the assertions put forth by employers represent a political effort to contest the legitimacy of the ILO supervisory bodies. This endeavor is an attempt to undermine ILO institutions while simultaneously eroding the rule of law, which is supported by an inadequate legal foundation.Footnote ⁷⁹ The de facto agreement of the social partners within the ILO has been to preserve the ability of the committees to set ILO standards while interpreting the conventions.Footnote ⁸⁰ The claims of the employers regarding the right to strike were also contrary to the constant recognition of the right to strike over the years as a fundamental right by the ILO institutions. The ILO constituents themselves recognized a positive right to strike over the years, which was considered an inevitable corollary of the freedom of association of Convention 87.Footnote ⁸¹

Fifth, the employers’ group based its claims in demanding that the right to strike would not be recognized on the fact that the right to strike was not included specifically in Conventions 87 and 98. Even though the ILO conventions did not explicitly recognize a right to strike, Convention 87 acknowledged in Article 3 the full freedom of workers not only to join trade unions but also to organize their activities and formulate their programs, which was considered over the years as granting a right to strike to workers.

Sixth, it should also be noted that since the 2012 challenge to the right to strike, the opinion of employers has not been actively accepted by the institutions of the ILO, and the ILO principles regarding the right to strike have not been actively changed in response to this challenge. The ILO institutions have also chosen not to change the mechanisms of interpretation of the convention and the supremacy mechanisms of the committees.

Moreover, in 2014, a consensual decision of the GB recognized the authority of the CEACR in determining the legal scope, content and meaning of the provisions of the conventions.Footnote ⁸² The GB stated that the role of the CEACR is to undertake an analysis of how conventions are applied in the member states in law and practice, and in doing so, it must determine the meaning of the provisions of the conventions. In this respect, it should be noted that the mechanism of the ILO committees is especially fit to interpret the conventions in specific cases and according to the concrete circumstances of each case.

Sixth, various concerns could be raised regarding the proposal that the interpretation authority is not granted to the ILO Committees. These include the fact that the ICJ has only handled one case of convention interpretation before the current crisis of 2012, and the necessity to preserve the mechanisms of participation of the three social partners in the process of interpreting the conventions and preserving the ability to interpret the conventions on a day-to-day basis in specific cases.Footnote ⁸³

Seventh, it should be noted that different national and international courts acknowledged the legitimacy of the authority of the CEACR to interpret the conventions and leaned on the jurisprudence of ILO committees.Footnote ⁸⁴ For instance, the ECtHR declared that the right to strike was a fundamental right derived from freedom of association included in Article 11 of the European Convention on Human Rights and Fundamental Freedoms in the case of Enerji. Footnote ⁸⁵ The ECtHR emphasized that the right to strike had been recognized by the supervisory bodies of the ILO as an essential corollary of the freedom of association protected by ILO Convention no. 87.

Moreover, the Inter-American Court of Human rights in the case of Baena Ricardo v. Panama, relied on the observation of the CEACR and the CFA in ruling that the government of Panama violated the right to freedom of association guaranteed by Article 16 of the American Convention on Human Rights, when it issued a decree dismissing 270 workers for having gone on strike.Footnote ⁸⁶

Eighth, as Sergio claims, the ruling of the ICJ should take into account that dignity is a key element in the Declaration of Philadelphia (1944) incorporated in the ILO Constitution. Consequently. Dignity can complement theoretical justifications of the right to strike and be a crucial issue at the ICJ.Footnote ⁸⁷

The concept of SMU

The theory of SMU holds that in certain cases, trade unions have become involved in the public arena and their collective actions are aimed at promoting struggles in the social spheres. Thus, despite a general trend of decline in union density and the power of trade unions in the global era, in certain cases, it is possible to advance a trend of renaissance in organizations. This could be done using new channels related to the public arena and political strike.Footnote ⁸⁸ The power of trade unions in these cases stems from the fact that they operate in several dimensions and join other organizations to create political coalitions.Footnote ⁸⁹

SMU, therefore, has a few characteristics. First, organizational steps that go beyond regular strikes in the workplace, such as joining demonstrations, rallies and marches, and using political strikes or protest strikes.Footnote ⁹⁰ The implementation of a participatory and informal democracy close to the ground (grassroots democracy).Footnote ⁹¹ The use of channels of this type strives to realize the interests of the trade union’s members, not only as workers but also as citizens.

Second, creating coalitions with social protests in which citizens, students, associations and social organizations take part.

Third, public aims, such as action for social justice and the realization of important social issues.Footnote ⁹² These are collective actions that are driven by social, ethical and non-materialistic goals, such as striving for equality and promoting democratic values.

Fourth, the location of the actions is outside the workplace and is evident in the public space.

Moreover, the approach of SMU mainly posits that this type of unionism may strengthen workers’ organizations, especially in cases of their being pushed out of the political field or their power declining due to the rise of neoliberal concepts.Footnote ⁹³ It is also intended to be a means of dealing with a social dispute, weakening trust in the government and increasing social protests.

In this regard, SMU is not focused on the working class but crosses class boundaries. The goals are social and democratic, and not materialistic goals. The theory examines new possible forms of action by trade unions within the social arena, striving to achieve political changes within the framework of a struggle to protect democratic and social values.Footnote ⁹⁴

In this regard, although there is a global decline in regular strikes, it is possible to observe an increase in the use of a new type of organizational measures in the form of political strikes since the 2008 economic crisis.Footnote ⁹⁵ The phenomenon of political strikes in Europe over cuts in welfare programs and the policies surrounding the subprime crisis in 2008, usually accompanied by mass protests, demonstrates the need to recognize the possibility of launching the kind of political strikes framed as protest strikes.Footnote ⁹⁶ Therefore, we can learn from this about the need to recognize the legitimacy of protest strikes, especially as a tool for dealing with wide public struggles. The idea of SMU emerged as a critical perception.Footnote ⁹⁷ It criticizes the traditional socialist approach of organization, which considers workers’ organizations as a body with only narrow goals related to promoting professional struggle in the workplace.Footnote ⁹⁸ The criticism of the traditional concept of organizing is that it is a narrow concept that has limited possibilities for action in the political and social spheres.Footnote ⁹⁹ Organizations that operate in this way are characterized by top-down patterns and little involvement of the workers themselves in organizing, with a commitment to policies that are directly related to economic interests and instrumentalism.Footnote ¹⁰⁰

The argument is that the concept of SMU has the power to bring about a balance between the power of corporations and to restrain the great power of the government itself.Footnote ¹⁰¹

SMU is characterized by the adoption of practices of involvement in politics, the formulation of political demands, and initiatives to change the existing situation in the political field.Footnote ¹⁰² Trade unions, as a social movement, can influence public agendas and create a favorable agenda for workers. Critical approaches also often claim that public bureaucracy and government have become a technocracy. That is a government consisting of bureaucrats and officials that is increasingly moving away from democracy and representation of the true positions of the public, and relies largely on experts and professionals. Technocracy means that a small group of officials and experts holds great power to determine policy, even though this may be contrary to the perceptions of the public. These critical approaches claim that the government that determines policy today has become illegitimate because there is no significant participation of the general public in shaping policy.Footnote ¹⁰³ Therefore, these critical approaches call for restoring democratic legitimacy through elements of public participation, while shaping policy plans.Footnote ¹⁰⁴ SMU attempts to fill the void and enable public participation through the apparatus of trade unions that take part in public struggles.

Thus, despite the claim that traditional business-based unionism promotes the ability to exercise workers’ rights, the critical approach of SMU claims that this kind of unionism does not advance workers. The concept of SMU argues that in reality, workers’ organizations are becoming weaker in power, and in order to strengthen them, it is necessary to use other channels that involve political and public issues. This critical view claims that despite the attempt of the traditional socialist approach to organizing to present business-based unionism as one that strengthens workers’ organizations vis-à-vis the employer and reduces gaps, in reality, such a way of organizing preserves hierarchical structures of power. In this regard, it is argued that it is precisely focusing on narrow issues of the workplace that has led trade unions to a situation where they are no longer relevant to modern reality and are perceived as archaic organizations.

Furthermore, while the traditional approach attempts to present organizing as a tool for balancing the gap in bargaining power with the employers and corporations, a critical approach would argue that, in practice, the traditional approach preserves the inferior place of workers in the normal social order vis-à-vis the state and capitalists. In contrast, the critical approach to organizing allows workers’ organizations to break through the barrier of the normal hierarchical social order, in which workers are powerless and subordinate to capitalists. According to the new approach, workers may have great influence and take part in shaping the agenda and policy.Footnote ¹⁰⁵ The concept enhances the strengthening of trade unions against the background of their use of other tools of protest and political strikes.Footnote ¹⁰⁶ While the traditional power of trade unions grew from economic struggles in the factory and collective bargaining, today, there is the formation of another force, which is a social force that grows from political struggles. Focusing on narrow issues may lead to the erosion of the power of trade unions and their displacement from the arena following the rise of neoliberal forces.

Origins and historical background of SMU – developments of union involvement in social movement patterns

The historical origins of SMU can be traced back to the 1970s and 1980s, where unions’ involvement was apparent in democratization movements in the global south in Africa, Asia and Latin America.Footnote ¹⁰⁷

In South Africa during the 1980s, the COSATU union played a significant role in the development of SMU. Its involvement in public struggles was part of the broader fight against Apartheid and efforts to promote the transition to democracy and non-racialism.Footnote ¹⁰⁸ COSATU forged alliances with community and political organizations in enhancing democratic values and addressing issues of inequality and injustice.Footnote ¹⁰⁹ Through the 1980s, South Africa’s unions were involved in demonstrations, which were political uprisings, and their leaders were national figures linked to a broad political movement for democracy.Footnote ¹¹⁰

Thus, the origins of union-community alliances can be traced back to the early 1980s, when shop steward councils began forging connections with local youth, women and civic organizations to address pressing community issues such as educational crises and rent boycotts. In this context, COSATU strengthened its connections with the community, emphasizing the intertwined nature of workers’ challenges in the workplace and their neighborhoods in the broader quest for democratic control over their lives. To tackle issues related to rent, transportation and inadequate living conditions, workers were encouraged to lead initiatives in establishing street committees in townships, aimed at promoting democratic organization, unity and resilience.

COSATU strengthened its grassroots alliances by formalizing a strategic partnership with the UDF political protest group, aimed at pursuing objectives beyond the immediate interests of the working class.Footnote ¹¹¹ The organization employed political strikes as a method of opposition against legislative measures perceived as unjust. Through its engagement with community groups and the UDF, COSATU activists played a significant role in shaping the discourse of the broader opposition movement, infusing a distinct class perspective into political demands that addressed exploitation, domination and discrimination.Footnote ¹¹²

In Brazil, in Latin America, since the 1970s, unions organized at the factory and were supported by the community, constituting a resistance to the state. Within the 1970s and 1980s, symbiosis relationships were established between unions and the community.Footnote ¹¹³ Due to the high levels of repression experienced under the dictatorship, non-traditional forms of labor activities played a central role in effective pro-democracy activism.

In Brazil, the main trade union – CUT engaged with civil organizations and political groups in an attempt to fight the dictatorship. CUT, established networks with other social movements, thereby creating coalitional power and community campaigns for improved social services and full citizenship, which were supported by unions.Footnote ¹¹⁴ Brazil factory workers backed up broad demands for political goals, equality and rights for the lower classes.Footnote ¹¹⁵ Demands went beyond political change to promoting full citizenship to the lower classes and access to social resources. Brazil’s military regime faced growing popular opposition, which challenged fundamental relations of power and control, and the unions were part of the opposition movement against the authoritarian regime. By the early 1980s, union leaders in Brazil had become political actors, and in 1989, a union leader – Luis Infacio da Sila – nearly won the national elections.Footnote ¹¹⁶ The support for Luis Infacio da Sila demonstrated the appeal for a different kind of social order – one in which members of subordinate classes would be incorporated as full citizens.Footnote ¹¹⁷

In Asia, particularly in South Korea, SMU emerged.Footnote ¹¹⁸ In the 1970s, workers’ death was a trigger for the first coalition between labor activism and civil society organizations, including student organizations.Footnote ¹¹⁹ In the 1970s, many student activists opened night schools around industrial zones to educate workers about labor laws. Unions often formed resistance coalitions with student movements and religious groups to resist the state’s employer-favor policy.Footnote ¹²⁰ In the 1970s, social justice movements were primarily driven by academic and religious circles with liberal ideologies. Support for workers at that time came from various religious groups. In the 1980s, some radical students, who masked their academic backgrounds to become workers (known as hakchool workers), were also involved in social struggles. Throughout the 1980s, numerous university students in South Korea ventured into factories to organize the working class and urban poor.Footnote ¹²¹ In their efforts to politicize various issues plaguing contemporary South Korean society, they mobilized thousands of students into formidable street demonstrations.

In Korea, during the 1980s, relationships among union activists and civil organizations across various movements emerged as a form of resistance against the state. The development of SMU has encountered several significant challenges. First, increased direct state intervention in labor disputes led to heightened politicization among workers. To gain recognition for their democratically elected representatives, workers faced severe repression from the government. Without addressing the need for reforms in Korea’s political and legal systems, workers found it difficult to advocate for improved working and living conditions. The second challenge involved the formation of working-class communities around industrial complexes in urban areas. The concentration of these communities served as a primary means for workers to engage politically, as their close residential proximity to factories facilitated the exchange of information. The third factor was the impact of student radicals and progressive intellectuals, who infused the labor movement with radical political ideas.

The year 1987 marked a turning point for labor movements, and workers became one of the leading political forces.Footnote ¹²² KCTU was a dominant trade union in the development of SMU.Footnote ¹²³ The campaign for democratization reached a climax with historic events in 1987. About a million Koreans, including students and workers, participated in rallies in June 1987 against the dictatorship and demanded a democratic constitutional reform. These nationwide protests compelled the administration to enact significant political changes. Between July and September, thousands of workers participated in strikes to advocate for economic democracy, seeking improvements in working conditions. The regime backed down and made conciliatory reforms, promising direct presidential elections.

The origins and historic patterns of unionism in the Global South may teach us about the importance of allowing trade unions to actively participate in public struggles as part of grassroots efforts for establishing democracy and advancing social goals.Footnote ¹²⁴ The case of SMU in the global South, such as the mobilization of trade unions in the struggle against Apartheid, shows that unions operating in the social arena may lead to the promotion of democratic values and social goals. In this context, using measures such as protest strikes may mobilize resources and strengthen the power of unions in addition to promoting important democratic and social goals, and therefore should be considered legitimate.Footnote ¹²⁵

Strikes and patterns of SMU in Israel

1. (1) Protest and political strikes in Israel

In Israel, the right to strike has been established from the beginning of the country’s existence as an economic tool as part of negotiations between workers and employers. Thus, in the Hativ case, the court held that the political strike could cause constitutional and social problems and was therefore considered illegitimate.Footnote ¹²⁶

In different cases, the Israeli courts refused to recognize collective actions as a legitimate strike, even though they should have been recognized as a protected protest strike according to ILO principles. For instance, in the Bank Discount case, the court held that a strike aimed against the privatization of a bank was illegitimate, although the privatization had a natural direct connection to the employees.Footnote ¹²⁷ The court considered the strike as political and issued an injunction against the strike, even though it should have been regarded as a legitimate protest strike. The labor court emphasized that only a strike that involves the implications of the privatization process on the employment terms could be considered legitimate.

Against this background, Israeli unions have shown since 2018 the beginning of the development of SMU. The patterns of SMU have been reflected in the fact that unions do not serve only their members but a broader social constituency. These activities of unions in collaboration with other civil organizations included enhancing social justice and reducing the cost of living, equality for the LGBT community, advancing women’s rights or avoiding domestic violence toward women. It also included struggles for democratic values and avoiding reform in the judicial system, which might have affected the operation of the courts. The unions acted in collaboration with student groups, academic staff, protest groups and various civil organizations, including army reserve personnel.

Since 2018, strikes have accompanied large public protests initiated by civil organizations in opposition to policy programs. In 2018, the Histadrut union participated in a struggle for equality for the LGBT community. Public protests emerged when a law was passed allowing only single women to use surrogates, but not single men. This sparked a widespread protest by the LGBT community and various interest groups, which included demonstrations and the blocking of entrances to main roads in Tel Aviv. The protest and strike, which were led by the Histadrut, ultimately resulted in the amendment being annulled by the court in 2021, as it was deemed discriminatory against single men.

The head of the Histadrut declared that, as the largest trade union in Israel, it also considers itself a social movement and opposes any discrimination against people. He called for a work stoppage of workers from the LGBT community and others who supported their struggle. He announced that the Histadrut would support the LGBT members and other workers who wish to take part in the strike, calling on unions and management to allow workers to participate in the strike.Footnote ¹²⁸

Another strike for advancing public aims was evident in 2018 during social protests in an attempt to avoid the phenomenon of rising domestic violence against women and in an attempt to enhance women’s rights.Footnote ¹²⁹ In this case, the struggle was aimed against the government’s policy on the matter, and the lack of effectiveness of the existing policy to eradicate violence against women.

In 2023, strikes occurred as part of a social struggle in Israel for preserving democratic values, which included demonstrations, blocking roads and rallies, aimed against an initiative of the government to reform the judicial system. The government’s plan to reduce the power of courts to perform judicial review was met with street protests by thousands and large crowds demonstrating in the main cities of Israel.Footnote ¹³⁰ This 2023 social protest included different strikes. The Histadrut announced measures against the legislation of the legal reform moves.Footnote ¹³¹ In March 2023, the Histadrut declared a general strike in the market. The chairman of the Histadrut held a press conference and announced a strike that would continue until the government stopped the legislative process for the reform and canceled the dismissal of the defense minister. These collective actions were taken as part of a broad social protest in which social organizations also took part, including various protest groups. Alongside the strike, civil protest actions were taken by various organizations and the general public in the form of demonstrations, rallies and even roadblocks. In this fight for enhancing democratic values, the Histadrut trade union collaborated with academic staff, student organizations and civil organizations. These collective actions by trade unions were supported by large protest groups and civil organizations. In July 2023, several workers’ organizations protested against the suggested legislation bill regarding the judicial reform that was passed by the government, and also regarding the layout of the defense minister. The Israeli Medical Association went on a strike in the hospitals and the public clinics of the NHS to oppose this suggested legislation.Footnote ¹³² These collective actions were part of a large social protest of social organizations, military personnel and the public in general.

Strikes that have occurred within this framework have been considered by the courts as illegal political strikes. Thus, following the doctors’ strike, the matter was brought before the Labor Court. The Labor Court held that the strike opposed legislation regarding a suggested reform of the judiciary and had no connection to the doctors’ working conditions.Footnote ¹³³ The court further held that the collective action was a political strike and thus illegal, and the workers were not able to exercise the strike action.

The Labor Court’s decision regarding the Doctors’ strike case should be criticized. The judicial reform included a suggestion for a few bills, some of which had a connection to workers’ rights and, therefore, should enable the exercise of a protest strike. For instance, one of the proposed bills included a suggestion to narrow the scope of the right to strike and place a ban on any strike.Footnote ¹³⁴ It was proposed to allow parliament the authority to declare a suspension of a strike for 30 days, or to end the conflict and submit the decision to arbitration. Another bill included a suggestion to have a reform in the reasonability demand, which could also affect doctors and the relationship between the health ministry and doctors.Footnote ¹³⁵ In times of social disputes, it is especially important to allow trade unions to advocate for the interests of workers and the general public by organizing protest strikes. Therefore, we should consider applying ILO standards in order to enable courts to recognize the possibility of organizing actions against governmental policies that the workers oppose.

In 2024, during the Iron Swords War, the Histadrut’s involvement in social struggles and taking various collective actions was apparent in collaboration with other groups, including military reserve personnel and civic organizations. This was expressed, among other things, in a 100-minute general strike in January 2024. Regarding the reason for the strike, Histadrut Chairman stated that, ‘On January 14, all the workers will stop their work for 100 minutes to identify with the kidnapped persons, marking 100 days in captivity in Gaza and to support their families’. The chairman of the Histadrut issued the statement together with a representative of the family of the kidnapped persons and the head of the headquarters for the return of the abductees. The reason for the 100-minute strike is a political one, and the organizational steps were directed against the government’s policy. The organizational steps were taken in collaboration with various protest organizations and were also accompanied by support rallies with masses of participants in Tel Aviv, who demonstrated against the way the war was being conducted and the policy regarding the abductees.

The academic faculty unions also together with student organizations, took part in the 100-minute strike initiated by the Histadrut in January. Protest rallies and demonstrations were held at various academic institutions during the strike. The strike was also accompanied by rallies in other places and the joining of various protest organizations, the Jewish Agency, research institutes and NGOs that took part in the strike and stopped their work for 100 minutes.

On September 2nd 2024, the Histadrut launched a general strike against the government’s policy in the Iron Sword War. As for the reason for the strike, the chairman of the Histadrut stated in announcing the strike: ‘I have just finished a meeting with representatives of the families of the kidnapped persons. It is impossible to stand by the cries of our children who are murdered in the tunnels in Gaza. Only a strike will shake things up. A deal must be reached. I am calling on all organizations to join the strike and raise the cry of our beloved country, the dead, and the kidnapped’. The reason for the strike, therefore, revolved around a military policy regarding the kidnapped person deal, and the issue of a cease-fire and it was aimed at advancing public goals.

It should be noted that the Histadrut collaborated with civic groups and organizations of the kidnapped persons’ families, army reserve personal and protest civil groups. The chairman of the Histadrut announced the strike at a joint press conference with representatives of the families of the kidnapped, persons with whom he met at the Histadrut building in Tel Aviv, in the wake of the murder of the six kidnapped in August 2024. At the end of the meeting, there was a joint statement by the Histadrut and representatives of the families of the kidnapped persons. The general strike was made as part of the protest of the families of the kidnapped persons and various social groups against the governmental policy regarding the manner of conducting the war. After the strike was announced, the chairman of the Histadrut gave a speech at a special rally organized by various social organizations together with the Histadrut. The call from the Histadrut was to return the State of Israel to normal and prevent a continuation of a situation in which there were deaths and kidnappings. The strike was carried out as part of a protest movement against the policy regarding the management of the war and the issue of the hostages, to bring about a cessation of fighting or a ceasefire and the release of the hostages, and a return to normality.

Also on September 2nd, the Universities and Colleges’ Struggle Headquarters issued a call to join the strike in support of the protest of the families of the abductees initiated by the Histadrut. This followed a call also from the University Presidents’ Committee to bring about a policy that would lead to the release of the abductees. Various faculty organizations and academic institutions indeed joined the general strike in September. Protest actions were also held at universities during the strike.

The use of strikes by trade unions in 2018–2024 embodies the concept of SMU.

The new practice whereby trade unions act against policy encounters difficulty in relation to existing jurisprudence, which does not recognize the possibility of launching strikes regarding political issues and against governmental policy. In a petition filed against the general strike that took place on September 2nd, in the Forum Gevura case, the Labor Court issued an injunction to stop the strike.Footnote ¹³⁶ The parties that filed a request for an injunction against the strike in the Forum Gevura case claimed that the strike was not related to labor relations but was declared following the death of the six abductees in Gaza and revolved around issues of a ceasefire and policy regarding the abductees, and therefore, it should be considered an illegal strike.Footnote ¹³⁷

In this case, the Court held that it was an illegitimate political strike, reasoning for its ruling that the strike was prohibited, the Court referred to the statements of the chairman of the Histadrut, who clarified that the reason for the strike was that ‘It is unacceptable to ignore the cries of our children being murdered in the tunnels in Gaza’. The Court emphasized that it did not find an economic argument in the declaration of the strike. As opposed to the prior decisions in the Doctors’ strike case regarding the strike involving the judicial reform, in the case of the collective action involving the hostages and the war, the strike indeed should be classified as a political strike. Nevertheless, the Labor Court’s decision regarding the doctors’ strike can be criticized according to ILO principles, and the distinction between protest strikes (which are considered legitimate) and pure political strikes should be upheld.

1. (2) Patterns of SMU in Israel

The State of Israel developed in its first decades as a corporatist welfare state in which labor organizations played a central role. In this framework, the Histadrut trade union was a dominant trade union that most workers were members of, with close ties to the political arena and the Labor Party. Within the corporatist structure, the Histadrut also provided public services, including health services through a health insurance fund owned by the Histadrut, pension and allowance services. Until the 1980s, trade unions in Israel were very powerful, and the union density was high, reaching up to 80% of employees. At the same time, the Histadrut controlled large parts of the economy, and it owned many factories and defense industries. In this framework, the Histadrut served as a dominant and almost sole labor organization in the arena. Social and economic policy was determined in those days to a large extent in cooperation with the Histadrut, which was also an active party in formulating employment legislation.

Along with the Histadrut’s strong position as a powerful trade union, its connection to the ruling party, and its grip on politics, it adopted over the years a traditional concept of business-based unionism. The Histadrut focused its organizational steps on workers’ professional struggles and did not take part in public protests. One reason for this was the lack of the need for protest activity in the social arena, as the Histadrut had influence on the political arena through its connection to the Labor Party and the mechanisms of the corporatist structure.Footnote ¹³⁸

Organizational steps taken by trade unions over the years have mostly been economic strikes that have been tied to the workplace itself. In Israel, there have been almost no purely political strikes over the years, except for the strike in the Hatib case.Footnote ¹³⁹ The strike in the Hatib case was a strike organized by the leaders of the Druze community in protest of the entry into force of the law regarding the Golan Heights, but it was not a strike declared by a trade union.

The decline of corporatism and the great decline in union density and coverage of collective agreements starting in the 1980s led to a process of devaluation of the power of trade unions.Footnote ¹⁴⁰ The weakening of corporatist mechanisms since the 1980s and, even more so, the 1990s and 2000s have stimulated the need to use other channels to influence the policy field.Footnote ¹⁴¹ The rise of neoliberal concepts and the displacement of labor parties from the political field also affected the need to develop new forms of putting issues on the agenda and holding struggles over social and economic policy.

The development of different characteristics of SMU can be identified in the Israeli case in recent years. Nevertheless, the Israeli case reflects, in relation to one of the characteristics of SMU, only the beginning of its realization. As for the first characteristic within the framework of the theory, actions that have social goals, value-based, social, democratic and not materialistic goals, the Israeli case can be seen as a fulfillment of this first characteristic. For instance, the strikes and actions taken during the Iron Sword War were intended to promote the social goal of returning the kidnapped persons, and in some cases also advancing a ceasefire. Another example is the strike that involved the protest of the LGBT community in 2018, with the aim of promoting equality and human rights. The measures that were used were part of a broad public struggle and social protest. This is an action for social justice and the realization of social issues.

Second, organizational steps that go beyond regular strikes in the workplace, such as joining demonstrations, rallies, marches and political or protest strikes that are aimed against public policy.

The Israeli case can be seen as a fulfillment of the second characteristic. The steps taken by the trade unions in large social protests in the last few years included strikes, which revolved around issues that are not related to the workplace or to industrial disputes, but concern governmental policy. For instance, in 2023, a strike was declared, which was aimed at the judicial reform. Unions were involved in steps, such as participating in rallies, demonstrations and marches. For instance, there were speeches of trade union leaders in the Kidnapped Square during the war.

As for the third characteristic – establishing coalitions and joining civil organizations, the Israeli case can be seen as a fulfillment of the third characteristic as well. For instance, the organizational steps during the Iron Swords War were taken while creating coalitions with the headquarters of the families of the kidnapped, civil society organizations, academics, students and the general public. Strikes that took place were mass strikes concerning public policy, and were characterized by the fact that social organizations, military personnel in reserve and civilians also joined them.

Fourth, the location of the actions is outside the workplace and is clearly visible in the public space. This also occurred in the Israeli case. The measures taken during the protest against the judicial reform included mass rallies and demonstrations that took place in the streets and squares, and not just in workplaces. For instance, in protests against the judicial reform, academic trade unions of Tel Aviv University arranged demonstrations and rallies in Antin Square near the university.

The fifth characteristic is taking a leading role in public struggles that ultimately result in success. With respect to the sixth parameter, the Israeli case demonstrates only the beginning of the realization of this parameter in relation to strikes during the war. This is due to a premature cessation of strikes during the war, which impeded the opportunity for meaningful change. Nevertheless, this parameter can be seen in other cases. Thus, this fifth parameter can be observed regarding the Histadrut during various instances prior to the recent strikes related to the war and the hostages. For example, in the case of the LGBT strike over legislation that affected equality, the Histadrut initiated a strike that succeeded in drawing attention to the struggle over the legislation, which was eventually changed.

It should be noted that, although the Histadrut was sometimes drawn into conflicts initiated by other groups and citizens, it ultimately assumed a leadership role that significantly contributed to the overall success of the struggle. For instance, during the 2023 strike concerning the proposed judicial reform, the Histadrut actively participated and held preparatory meetings before the strike and the layoffs of the Minister of Defense, which led to the involvement of other groups. This strike effectively halted the legislative process for most of the proposed bills, which were eventually withdrawn. It was only after the Histadrut organized the strike that the legislative process came to a stop, prompting discussions at the president’s residence about potential solutions, and the layoff of the minister of defense was cancelled.

BSMU and protest political strikes in recent years in Brazil – a comparative look

Brazil was developed as a corporatist country.Footnote ¹⁴² Brazil and Israel have both experienced a decline in corporatist tradition, yet their trajectories regarding SMU have diverged. Israel, with its democratic background, has seen the emergence of SMU only in recent years, primarily focusing on the preservation of democracy and human rights. In contrast, Brazil has an authoritarian background and has a longstanding tradition of SMU that dates back to the 1970s and 1980s. Unlike Israel, Brazil’s recent developments in SMU have been largely driven by responses to the rise of neoliberalism and the implications of foreign investments.Footnote ¹⁴³

In recent years, following the 2008 economic crash, Brazil witnessed the development of a new wave of SMU and mass strikes.Footnote ¹⁴⁴ In Brazil, SMU in recent years has been mostly established around global capitalism, including privatization, neo liberal reforms, capitalist development of regions and leaning on foreign capital, which has led to exploitation.Footnote ¹⁴⁵ The development of SMU was characterized by conflict with repressive state institutions.Footnote ¹⁴⁶

Since 2008, after the world economic crisis, labor conflicts have arisen in Brazil in a context of economic growth and government investment in strategic economic sectors. Growing dissatisfaction among workers became evident in the steadily increasing number of strikes, which focused on flagship government projects in strategic sectors such as infrastructure, construction and energy. Many of the labor conflicts between 2011 and 2016 were directly associated with Brazil’s major development projects as part of the growth acceleration plans, focusing not only on wage increases, but also on food, medical assistance and public issues. Political strikes were associated with resource extraction, hydro-electricity and large infrastructural projects. Major strikes and protests took place at hydro-electric dam construction sites as well as oil refineries and port construction projects.Footnote ¹⁴⁷

For instance, strikes occurred in 2012 and 2013 at the largest construction site of Brazil’s recent state-funded project – the hydroelectric plant at Belo Monte.Footnote ¹⁴⁸ In these strike actions, coalitions with actors outside of the workplace were an important aspect of the struggles. The construction workers in Brazil cooperated with the regional resistance movement that had been formed to protest against the planned hydroelectric plant and the construction of the dam.Footnote ¹⁴⁹ Since these civil organizations were much better organized than the workers, they could provide places to sleep for workers who had been sacked during the strikes or organize legal support. They also disseminated news about the strikes on their websites, and some journalists who were cooperating with the local movements wrote stories about the strikes. Many locals were relocated, a considerable number of people were thus expelled from their territory, and ended up working on the construction of the dam. In the case of Belo Monte, worker grievances over safety and food were joined by indigenous and peasant mobilizations against ecological destruction, leftist intellectual and student groups, Catholic Church opposition and solidarity strikes that spread from one construction site to another. Belo Monte took on significance as workers, social movements and their allies expanded the debate about Belo Monte into a critique of the racialized nature of exploitation in the service of foreign capital in the governments’ policy, while the Brazilian state attempted to renew growth post 2009 by doubling down on this model of development.Footnote ¹⁵⁰

Another example of a strike against public policy following a neoliberal reform occurred in 2017.Footnote ¹⁵¹ The reason for this was the approval in July 2017 of the country’s most extensive labor law reform.Footnote ¹⁵² In 2017, general strikes and protests occurred following reform in labor legislation, changes in pensions and within the welfare state.Footnote ¹⁵³ The strike included a stoppage of activities throughout the country, followed by marches, rallies, roadblocks and demonstrations.Footnote ¹⁵⁴ The general strikes were based on a close relationship among politics, social movements and trade unions. Since the re-election of former president Dilma Rousseff in October 2014, various right-wing activist groups have sprung up across Brazil in protest of the government and in response to a massive corruption scandal at the state-owned oil company Petrobras.Footnote ¹⁵⁵ The general strike and protest focused not only on the labor reform but also on other issues, such as the rights of black people and a political struggle against certain policies.Footnote ¹⁵⁶ Throughout Brazil, trade unions joined forces in the protests and struggle with different social movements such as the Frente Popular and Povo sem medo, in addition to student movements, sectors of the Catholic Church, and other organizations. The government considered the strike as illegitimate due to its political nature, and following the strike, some trade union leaders were arrested.Footnote ¹⁵⁷

Thus, since the 2010s, Brazil has experienced significant social and political turmoil.Footnote ¹⁵⁸ A crucial event during this period was the trucker and oil worker strike in 2018, initially sparked by increasing fuel costs, which later evolved into a broader movement addressing various social rights and corruption issues. Following the strike, Justice Maria de Assis Calsing of the Superior Labor Court ruled that the workers’ strike was illegal due to the political nature of the strike.Footnote ¹⁵⁹ The Brazilian court issued a decision ordering the trade union to refrain from holding a strike on the grounds that the strike was political. In this vein, it should be noted that if the court had implemented the ILO standards regarding protest strikes versus political strikes, the strikes would have been considered legitimate.

Justification for implementing the concept of SMU regarding political issues

Some arguments could be raised in favor of business-based unionism, and in denying the legitimacy of using any kind of collective action in the political arena, including protest strikes.

First, it could be argued that strikes involving governmental policies undermine democratic institutions, since a handful of people with a central workplace who have access to political power try to pressure the government to accept certain policies, and therefore their strike lacks democratic legitimacy.Footnote ¹⁶⁰ This argument stems from considering unions as economic entities in a way that results in a ban on their non-economic activities.Footnote ¹⁶¹

Second, it can be argued that a strike has always been recognized as a tool for promoting negotiations and bridging the gap in bargaining power with the employer, and therefore, it should not be used as a political tool that goes beyond the original purpose of the strike.Footnote ¹⁶² Moreover, it could be claimed that using strikes for political struggle would affect the public support of unions.

Third, it can be argued that it is important to maintain the neutrality of trade unions as bodies that represent a broad spectrum of workers with different positions, since some workers might disagree on adopting specific political and social goals for the union’s activities. This argument emphasizes political elections and gives them preference over the direct action of the organized working class.Footnote ¹⁶³ Thus, it could be claimed that if workers as citizens have criticism regarding public policy and a will to oppose political ideas, these should be advanced through elections. Despite these arguments that could be raised, courts should adopt the concept of SMU and consider protest strikes as legitimate. There are several justifications for this proposition.

As for the first above-mentioned argument, it should be rejected. The literature on democratic theory posits that strikes can enhance democracy.Footnote ¹⁶⁴ Thus, a ban placed on any kind of political collective action by unions has been derived from the lack of understanding of the importance of unions in democracies.Footnote ¹⁶⁵ The narrow perception of strikes in the political arena has been derived from the fact that the regulation of strikes was grounded in a commercial point of view, and not in a constitutional democratic point of view.Footnote ¹⁶⁶ In this vein, it should be noted that there is a need to consider trade unions as civil society organizations that act to advance the interests of the working class in general. The interests of the working class go beyond matters directly related to a specific workplace and extend to social problems and public affairs. The perception of trade unions as an instrument for broad public activity grows out of a view of democracy as pluralism and not just as based on majoritarian rule. According to this line of reasoning, trade unions, as an integral part of civil society, have the power to put important issues on the public agenda. Whereas the ordinary citizens would find it difficult to influence policies on themselves, a trade union representing the class of workers could be able to do so on behalf of a large public, by means of strike action. In this context, in situations where the right to strike is restricted, or rendered more difficult to exercise, the ability of ordinary citizens to uphold and advance democratic values, practices and institutions is similarly impaired.Footnote ¹⁶⁷ While an ordinary person lacks the power to act to promote issues that are important to them, trade unions, which are well organized, may act effectively to promote various public issues. Moreover, scholars claim that citizens have a moral right to strike involving political issues or governmental policies.Footnote ¹⁶⁸ While democratic ideology advocates for the equality of citizens and the accountability of elected officials, the reality of democratic practice frequently involves significant political inequality. In this respect, the claim that political ideas should be advanced through elections and not via strikes has been based on the thought that the political arena promises equality in the influence on the design of public policy and representation. Nevertheless, often strong elite groups, corporations and employers have a stronger ability to influence policymakers. In these cases, the vast majority of citizens are unable to exert meaningful influence on political matters through the electoral process. However, those social elites, corporations and employers who are well-organized can effectively advocate for their interests. Therefore, the right to a protest strike can empower citizens to hold officials accountable and help mitigate instances of elite capture.Footnote ¹⁶⁹ A strike involving political issues can serve as an institutional provision to better align real democracy with its theoretical promises of equal voices to everyone in the political arena.Footnote ¹⁷⁰ It can provide a means for citizens to exercise political influence and hold elected officials accountable. By withdrawing their labor, they can pressure politicians into stopping policies that they deeply disagree with.Footnote ¹⁷¹ Thus, strikes regarding governmental policies can serve as a disruptive tool to improve political equality in democratic politics.Footnote ¹⁷² Because of their disruptive character, protest strikes make a specific issue salient in the political debate and focus attention on it. Citizens learn about the issue and the fact that other citizens are discontented about it, and might join the protests. Furthermore, the right to strike can promote the proliferation of democratic decision-making within workplaces and the broader economy. This, in turn, can enhance participation and foster confidence in political processes and institutions, ultimately contributing to their increased stability of democracy.Footnote ¹⁷³

As for the second above-mentioned claim, it should also be rejected. The ban on political action by unions has been derived from the fear of governments of the controversy with strong unions.Footnote ¹⁷⁴ Collective action of trade unions regarding social issues that are important to workers, in general, may strengthen the status of trade unions both among members of the trade union and in general. A right to strike helps trade unions to build their membership and organizational capacities. Repeated involvement in industrial action provides training for members and allows the development of relations of trust between members and their leaders.Footnote ¹⁷⁵ Strikes foster class solidarity and are regarded as a significant mechanism for political action within the working class.Footnote ¹⁷⁶ Moreover, the use of a protest strike and organizational measures in the public arena can realize rights at work and expand the scope of the right to strike as an important fundamental right.Footnote ¹⁷⁷

Moreover, it can be argued that trade unions are an instrument through which it is possible to place demands in negotiations, but at the same time also to conduct struggles on issues that concern workers. One of the rationales for the approach of SMU is that the approach strengthens trade unions and empowers the workers themselves because they become active, significant and committed to broad issues.Footnote ¹⁷⁸

Furthermore, in light of the crisis that has befallen workers’ organizations in recent decades and the decline in union density, trade unions should seek new ways to strengthen their power, and this concept of SMU may contribute to it. The concept allows for new channels of possible organizational action, in a way that may also recruit new members to the ranks of workers’ organizations.Footnote ¹⁷⁹ The concept also makes it possible to represent the broad interests of workers in all areas of their lives and not just in narrow issues of the workplace, including the social and economic interests of workers as family owners, citizens, consumers and more.Footnote ¹⁸⁰

Regarding the third above-mentioned claim about the lack of neutrality and representation of trade unions, it should be rejected. There are a few arguments supporting this position.

First and foremost, it should be noted that unions are inherently democratic organizations in a way that grants them democratic legitimacy. Unions also usually have internal elections and select the leaders of the union based on their agendas, ideology and proposed lines of collective action.

Second, the concept of SMU enables and increases the political participation of workers.Footnote ¹⁸¹ This allows for a transition from a democracy based on majority rule to a deliberative democracy in which the public participates in deciding on various issues in practice. It should be noted that despite the existence of elections, the government may act in a manner that contradicts the public’s views on specific issues. Therefore, it is important to maintain dialogue with the public even after the elections and throughout the process, especially on key issues where the public is divided, and which lead to social crises.

Third, trade unions may also enable the representation of workers from different groups, including ethnic groups or disadvantaged groups and those who are not well represented in government. This was the case, for example, when the Histadrut declared a strike in solidarity with the LGBT community’s struggle.Footnote ¹⁸² Trade unions also have the opportunity to enlist workers to be more active in the social and public arena. Furthermore, it can be argued that unions operating within the framework of a political strike are, in fact, promoting the public interest and fighting the public’s struggle regarding social issues.

In this regard, the approach of SMU would argue that adopting patterns of struggles that are focused on the workplace itself by trade unions does not serve the public. In such a case, trade unions are focused on their narrow interests and fight only for their working conditions, while neglecting important public issues. For example, when doctors go on a regular strike focused on demands for a raise in their wages, they may neglect important issues such as the future of the health system and the state’s investment in health in the periphery. Moreover, it can be argued that it is precisely the doctors who come from within the health system itself who know best how to point out the system’s pathologies and what is needed in terms of public policy to improve the health system.

Justification for implementing global constitutionalism in cases of protest strikes

Global constitutionalism is a concept that identifies and advocates for the application of constitutional principles in the international legal sphere, in a way that also obliges states to follow these basic principles in local systems.Footnote ¹⁸³ Thus, specific norms that constitute a special normative status within international law could be observed.Footnote ¹⁸⁴ These norms can be identified as a world law possessing a global constitutional character and a higher level of legality.Footnote ¹⁸⁵

Implementing a concept of global constitutionalism regarding ILO principles on the right to strike would mean that these principles are considered a special norm with fundamental status within the global system, in a way that obliges states to follow these principles.

The development of SMU can be based on adopting the concept of global constitutionalism and leaning on ILO principles. In this respect, there are a few claims that could be allegedly raised against the application of global constitutionalism and the implementation of ILO principles regarding purely political strikes versus protest strikes in domestic law. The arguments and the answers to them will be discussed below.

First, the topic of global constitutionalism highlights the tension between local laws, domestic constitutional norms and the principles of international law.Footnote ¹⁸⁶ One might argue that since the validity of international law hinges on the consent of states, and these states ultimately confer legitimacy to it, domestic constitutions therefore prevail over international law. As a result, local constitutions cannot be interpreted in light of international principles.

Nevertheless, this argument should be rejected. It is fitting to interpret domestic constitutional documents in accordance with the principles of international law. This approach can serve as a basis for judicial reviews of local legislation, provided that there are no conflicting provisions in the domestic constitutional documents. Furthermore, it can be asserted that domestic constitutions are generally interpreted in alignment with international law principles.Footnote ¹⁸⁷ In this context, judges are typically required to reference all binding sources in their rulings, including international law that has been assimilated into domestic law through recognized international principles. These principles may be viewed as international conventions or important international norms. This perspective is grounded in the belief that domestic constitutional law is a reflection of the international order. Consequently, local constitutional law should emphasize the recognition and protection of universal labor rights as articulated by international standards.

Second, it could be claimed that implementing global constitutionalism and principles of global organizations such as the ILO would end up undermining the sovereignty of the states and local politics.Footnote ¹⁸⁸

Nevertheless, this claim should also be rejected for the following reasons. It should be noted that the states’ mutual respect for sovereignty constitutes international activity. The states themselves have decided to join the ILO, and as members, they have accepted the ILO constitution.Footnote ¹⁸⁹ The freedom of Association is enshrined in the preamble of the ILO constitution, which states that the recognition of freedom of association is needed in order to advance social justice. It is also enshrined in the Declaration of Philadelphia, which is an integral part of the ILO constitution.Footnote ¹⁹⁰ The implementation of global standards based on the ILO constitution and basic principles is legitimate and is a fulfillment that states took upon themselves by virtue of joining the ILO. Moreover, scholars noted that state sovereignty implies responsibility for the protection of basic human rights and the government’s accountability to humans. When human needs are taken as the starting point, the focus shifts from states’ rights to states’ obligations regarding natural people, and a state cannot easily discharge these duties.Footnote ¹⁹¹

In practice, local legislation and domestic constitutional documents can be interpreted in a manner that aligns with international law principles, while also adapting these standards to fit the specific realities of the local labor market and cultural values. Consequently, international principles can be tailored to meet the demands of domestic constitutions and the local political landscape. It is essential to recognize that national institutions often encounter pressure from different groups of citizens, as well as from political influences. The acknowledgment of potential political strikes can affect the electoral viability of political actors, as such strikes may conflict with their initiated policy programs, leading them to be less inclined to permit them. In contrast, international institutions operate without the same constraints faced by nation-states and domestic political actors, granting them the freedom to establish more appropriate standards. Since states are responsible for crafting the international order and establishing international norms, they are compelled to adhere to these standards based on their consent to the system. Thus, principles regarding workers’ rights may be enforced even if not explicitly articulated in the domestic constitution, unless the constitution expressly denies such recognition.

Third, it could be claimed that each society has its own characteristics and ideology, and therefore, the local politics should determine the policy regarding industrial relations. As for this claim, it should be noted that international principles determine important universal standards and safeguard human rights.Footnote ¹⁹² Moreover, scholars identify specific norms as possessing a global constitutional character. The legitimacy of these norms is derived from their inherent moral value for society.Footnote ¹⁹³ Global constitutionalism pays particular attention to certain norms that are considered normatively superior and fundamental in nature. In this vein, the ILO principles regarding freedom of association and the right to strike recognize the right to organize as a fundamental core labor right that holds a special status. Freedom of association functions as a meta-norm within the ILO framework.Footnote ¹⁹⁴ Consequently, states are obligated to adhere to these principles, even if they have not ratified the relevant conventions, simply by virtue of their ILO membership. This special status of the ILO principles pertaining to the right to organize and strike provides a strong justification for their integration into domestic law.

The principles established by the ILO are recognized as global standards.Footnote ¹⁹⁵ Consequently, it can be argued that these principles reflect essential concepts of global justice that should also be embraced at the local level.Footnote ¹⁹⁶ The creation of safeguards for workers’ interests, especially in relation to legislation that undermines the right to strike, could draw normative legitimacy from the adoption of these international principles.

Fourth, it could be claimed that applying international standards undermines the concept of democracy and the majoritarian principle according to which only the domestic elected institutions that represent the majority of people enjoy democratic legitimacy to determine policy.

As for the third above-mentioned claim, scholars noted that constitutionalizing on the international level includes transnational democratic structures that embody democratic principles such as the rule of law. Moreover, as for the ILO standards, they are set in institutions and committees that represent the three components of industrial relations – employers, employees and the state. Therefore, these principles reflect just and proportionate standards. Implementing these standards could lead to protecting labor rights. Furthermore, ILO includes practices of deliberative democracy and tripartite negotiations between the three components of industrial relations.Footnote ¹⁹⁷ In this respect, deliberative democratic justification could be a basis for the effect of international law on local law.Footnote ¹⁹⁸ Moreover, the implementation of international principles could help solve disputes in the domestic state and could be useful in times of democratic crisis by using universal impartial standards.

In the Federation of Oil Workers case, the CFA held that unions should be able to have recourse to protest strikes, in particular where they are aimed at criticizing a government’s economic and social policies.Footnote ¹⁹⁹ The Committee recalled that the right to strike should not be limited solely to industrial disputes that are likely to be resolved through the signing of a collective agreement and that workers and their organizations should be able to express in a broader context their dissatisfaction regarding public and social matters.

Following ILO principles, and the decision in the case of the Federation of Oil Workers, and similar cases, the concept of the right to strike should encompass strikes that address social objectives beyond the collective bargaining process.Footnote ²⁰⁰ This should prompt the adoption of certain perceptions by the courts, moving away from viewing strikes solely as a means to advance economic concerns.

The case in front of the ILO involved strikes that were part of large social protests. Following this case, the legitimacy of a strike could be based on its being part of social protests. These standards stated in the Federation of Oil Workers case and similar or subsequent cases, should enable the recognition of the kind of political strikes against policy framed as protest strikes, which are enacted following social protests and as part of a social movement. Moreover, this is especially prevalent in societies characterized by a decline of corporatism. Following ILO principles regarding protest strikes, collective actions and practices of social unionism in countries characterized by social disputes, such as Israel, collective actions against governmental policy in the form of protest strikes should be recognized as legitimate.

The proposed model for a strike against governmental policy, according to the ILO principles

According to the suggested model, trade unions should have the option of declaring a strike regarding political issues and public policy. Recognizing the legitimacy of these strikes should be in line with ILO principles and based on the concept of global constitutionalism.

There are several guidelines in the proposed model for exercising the right to strike against public policies. First, the legitimacy of a strike against a governmental policy that has a connection to the workers must be recognized.

In this respect, following the ILO principles, a strike aimed against the policy itself, and not just one that is focused on its implications on working conditions, should be recognized as legitimate. For instance, a strike aimed at canceling a privatization process, and not only one that focuses on the implications of privatization on working terms, should be regarded as a legitimate protest strike. Thus, the ruling in the Bank Discount case, where the court held that a strike aimed against privatization itself was illegitimate, seems wrong.Footnote ²⁰¹ The ruling (emphasizing that only a strike involving the implication of privatization could be considered legitimate) should be criticized. Such a strike should have been classified as legitimate, according to ILO principles.

Second, a strike against a policy that has a broad economic impact should also be recognized. This is a strike regarding an issue that affects all areas of life for the working class as a whole. Therefore, a strike that focuses on policies relevant to the interests of workers, even if it is not tied to a specific workplace or specific group of workers, should be classified as a protest strike. For example, a strike opposing proposed legislation that seeks to reform pensions or a strike regarding a suggested reform in allowances of unemployed people should be regarded as a legitimate protest strike as well.Footnote ²⁰² Third, unlike the existing law in different countries, a strike regarding social struggles should be recognized as legitimate in the form of a protest strike. Thus, a strike concerning social problems should be allowed as part of social protest when it involves the broad interests and agendas of workers. Workers should have the ability to protest regarding public issues via strikes as part of their social rights and the right to freedom of expression. Thus, a protest strike should be allowed as a strike that promotes the interests of workers as citizens of the country.Footnote ²⁰³ The recognition of the possibility of applying a protest strike is especially justified when the strike is accompanied by a large social protest and includes participation in protest actions by civil associations and interest groups as a form of SMU. It is also justified when the strike concerns protecting human rights, advancing equality and democratic principles or social justice. Thus, the strike regarding the rights of the LGBT community, accompanied by a large social protest and supported by various interest groups, should have been recognized as legitimate. Fourth, pure political strikes should not be recognized, as opposed to protest strikes. Thus, in the Forum Gvura case involving hostages and the demand for the end of the war, the collective action indeed should be regarded as a political strike since it involved defense policy and pure political issues of foreign affairs and war.Footnote ²⁰⁴ Thus, in the Forum Gvura case, the strike was correctly classified as a political strike. Contrary to the Forum Gvura case, in the Doctors’ strike, the court’s ruling (in classifying the strike as purely political) can be criticized.Footnote ²⁰⁵ The Doctors’ strike was aimed at the judicial reform that included a suggestion for a few bills, some of which had a connection to workers’ rights and therefore, should enable the exercise of a protest strike. In times of social disputes, it is especially important to allow trade unions to advocate for the interests of workers and the general public by organizing protest strikes. Therefore, we should consider applying ILO standards in order to enable courts to recognize the legitimacy of such actions against governmental policies that the workers oppose.

Fifth, it is proposed to use the proportionality instrument to balance the right to a strike with other interests and prevent excessive harm to other rights. Proportionality demand balances the benefits of the strike with the damages to third parties and the public. When the damages are greater than the benefits of a strike, the court would issue an injunction against the strike, even if it is regarded as a legitimate protest strike. Through the proportionality instrument, it will be possible to create restrictions on the right to a protest strike ad hoc according to the circumstances. Using the proportionality instrument will make it possible to avoid considering strikes as being illegitimate (in a way that would not a priori prevent any possibility of using it).