complicated to the point of making it impossible, in practice, to hold a legal strike; and
c) the obligation to give notice to the employer before calling a strike is admissible,
provided that such notice is reasonable. 43
22.
Regarding the second element (the power to declare the strike illegal), the InterAmerican Court has held that this power should not be vested in an administrative body,
but rather in the Judiciary, in application of the grounds previously established by law, and
in accordance with the rights to judicial guarantees established in Article 8 of the
American Convention. Furthermore, the Inter-American Court considers that the State
must refrain from applying sanctions to workers when they participate in a legal strike,
since it is a lawful trade union activity that also constitutes the exercise of a human right,
and must ensure that such sanctions are not applied by private companies. 44
23.
Finally, the right to strike may only be limited or prohibited with respect to: a)
public officials acting as organs of the public administration exercising authority on behalf
of the State, and b) workers in essential services. 45 Regarding the latter, the InterAmerican Court has considered that they should be understood in the strict sense of the
term, that is, those who provide services whose disruption poses a clear and imminent
threat to the life, safety, health or liberty of all or part of the population (for example,
workers in hospitals, electricity or water supply services). 46 However, with respect to
these workers, the Court has pointed out that States must create compensatory
guarantees in favor of those services considered essential and for the public
administration, so that the limitation of the right to strike must be accompanied by
adequate, impartial and expeditious conciliation and arbitration procedures in which the
interested parties may participate at all stages, and in which the decisions issued are
fully and promptly enforced. 47
24.
In sum, although the right to strike has had little development within the
framework of the regional human rights systems, we cannot deny the importance of this
right, especially in the collective aspect of workers’ rights.
IV. THE RIGHT TO STRIKE AS A JUSTICABLE RIGHT IN THE CONTENTIOUS
CASE LAW OF THE INTER-AMERICAN COURT
25.
The right to strike is a basic right that is closely related to workers’ rights; the
way in which inter-American labor law has gradually developed is a process in which the
43
Cf. Advisory Opinion OC-27/21, supra, para. 100.
44
Cf. Advisory Opinion OC-27/21, supra, para. 101.
Cf. Advisory Opinion OC-27/21, supra, para. 102. The Court has also stated that: “104. […] in
relation to essential services, the Court emphasizes that States should seek alternative solutions for those
cases in which the total prohibition of strikes can be avoided when a minimum service would be an adequate
solution to guarantee the basic needs of users or the safe operation of the facilities in which the service
considered "essential" is provided. In this regard, it should be emphasized that the minimum service must be
limited to those operations that are necessary to meet the basic needs of the population or the minimum
requirements of the service, ensuring that the scope of the minimum services does not result in the strike
becoming inoperative. Negotiations on minimum services should take place before a labor dispute has
arisen, so that all parties concerned (public authorities, workers' and employers' organizations) can
negotiate as objectively and calmly as possible.”
45
46
Cf. Advisory Opinion OC-27/21, supra, para. 103.
47
Cf. Advisory Opinion OC-27/21, supra, para. 103.
8
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