Yearbook of European Law - Vol. 4

By A. Barav; D. A. Wyatt | Go to book overview

Is there a Fundamental Human Right to
Strike?*

HENRY G. SCHERMERS


I. Introduction

In my submission, there is a fundamental human right involved in the possibility to strike, but I do not share the view of the European Parliament that the freedom to stike can itself be accepted as a human right.1 In the present article I shall try to elucidate the basis for this submission.

After defining the notions 'fundamental human right' and 'the [right to] strike' we shall collect arguments for and against accepting the right to strike as a fundamental human right, and finally we shall draw some conclusions.


II. Fundamental human right

The first problem we meet is to define the characteristics of a fundamental human right. Many definitions are possible. For practical purposes I stick to a definition I used before2: Fundamental human rights are a special category of rights which are accepted by a society as being of such importance that on grounds of justice and equity they should be attributed to each individual (or, in some cases, to each individual of a particular group) and which must be respected by the Government and by the legislator. The borderline between a fundamental human right and a normal right is not sharp and varies from time to time and from place to place. For our present purpose this borderline is not of great importance. All questions whether the right to strike is, or should be, a fundamental human right, should also be considered as questions whether the right to strike is, or should be, a right at all.


III. Strikes

There are many different kinds of strikes. We shall distinguish strikes in three different ways, based on a) victim, b) purpose, and c) participants.

____________________
*
© Henry G. Schermers, 1989. Professor of Law, Leiden University.
1
In its resolution of 12 Apr 1989 on a declaration of fundamental rights and freedoms, Art 14(2). The same view is held by Ruth Ben-Israel, in a study prepared for the International Labour Office International Labour Standards: The Case of the Freedom to Strike (Kluwer 1988) 33.
2
In Protecting Human Rights: The European Dimension, Studies in Honour of Gérard J. Wiarda ( Carl Heymanns , Verlag 1988) 565, 566.

-225-

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