Reza Uteem in The Hague: "The Right to Strike is Protected, but it is Not Absolute"

On Tuesday, October 7, Minister of Industrial Relations, Reza Uteem, defended Mauritius's position before the International Court of Justice (ICJ), prompted by a question from the International Labour Organization (ILO) regarding a historical matter: "Is the right to strike protected under Convention No. 87 on Freedom of Association and Protection of the Right to Organize (1948)?"

"The right to strike stems from the right to associate," Uteem stated at the Peace Palace. He framed his argument clearly: "Mauritius holds that the right to strike for workers and their organizations is protected by the Convention. However, this right is not absolute; it is qualified by the laws of each member state."

He argued that Convention 87 must be interpreted "in its spirit and purpose," in light of the Vienna Convention on the Law of Treaties (1969). "The purpose of the Convention is to empower workers to organize their activities to improve their working conditions and maintain peace."

Uteem noted that the term "activities" in Article 3 of the text includes the right to strike. "Workers engage in various collective actions: picketing, refusing overtime, working at a slower pace. Are these actions excluded simply because they are not listed?"

"When workers unite to defend their interests through a strike, they exercise the right to organize guaranteed by the Convention," he added.

He emphasized the need for balance: "The right to strike is not an absolute right. It is a qualified right that must be exercised in accordance with national law, as stipulated in Article 8 of the Convention."

Uteem also reminded that the Convention itself allows restrictions for police and armed forces: "These limitations are outlined in Article 9, and Mauritius applies them in accordance with its constitutional order."

Regarding the legislative history of the right to strike in Mauritius, he stated: "The first legislation dates back to 1938 with the Industrial Associations Ordinance, which allowed the formation of employer and employee associations without explicitly mentioning strikes."

"After 1938, several ordinances and the Industrial Relations Act of 1973 progressively regulated strikes, especially in essential services."

"The Employment Relations Act of 2008, developed with ILO support, marked a turning point. It explicitly recognizes the right to strike while setting its conditions and limits."

Discussing the constitutional aspect, Uteem reminded: "Article 13 of the Constitution of Mauritius guarantees the freedom of association and the right to belong to a union for the defense of one’s interests."

He continued: "This right is not absolute and can be restricted for reasons of security, public order, or morality, provided these restrictions are reasonable in a democratic society."

He added: "The Constitution, like Convention 87, does not explicitly mention strikes. However, it has always been understood as an expression of union rights."

In conclusion, Reza Uteem urged the Court to acknowledge Mauritius's pragmatic approach:

"We respectfully invite the Court to consider how, in practice, Mauritius has interpreted the right to union membership as including the right to strike, within the limits set by law and reasonable in a democratic society."

Uteem then passed the floor to Ms. Ramjeeawon-Varma, Assistant Solicitor General, who was tasked with presenting the Mauritian government’s supplementary legal arguments.