JOINT CONCURRING OPINION OF JUDGES ZIEMELE, HIRVELÄ AND BIANKU

1. We voted with the majority in this case and we also agree with the reasoning in the judgment. However, it should be pointed out that the case raises a very delicate and complex issue as regards the interpretation of the European Convention on Human Rights today. First of all, the Convention was conceived as a treaty on civil and political rights. However, the division between the so-called three generations of human rights has been rightly abandoned since then (see the 1993 Vienna Declaration and Programme of Action adopted by the World Conference on Human Rights). At the same time, the States Parties to the Convention have not given the Court the mandate to address the issues concerning their economic and social policies. These are always very difficult. Therefore, the Court has in fact accepted that the States have a wide margin of appreciation for decisions in cases touching upon economic and social policies (see, for example, National & Provincial Building Society , Leeds Permanent Building Society and Yorkshire Building Society v. the United Kingdom , 23 October 1997, §§ 80 ‑ 82, Reports of Judgments and Decisions 1997 ‑ VII).

2. While, in view of Article 31 of the Vienna Convention on the Law of Treaties and the Court ’ s case-law, especially its findings in Demir and Baykara v. Turkey ([GC], no. 34503/97, ECHR 2008), the Court does not have a choice but to conclude that secondary strikes form part of Article 11 of the Convention, the Court should be reluctant to render a binding judgment which would require the modification of an important social and economic policy principle with wide implications for the country ’ s economy. At this juncture we should say, however, that we are not impressed with the argument that, merely because Parliament has adopted a particular general measure, the Court may not overrule it, as it were. The Court has to adjudicate upon the individual facts and those facts may stem from a general measure. The Court may well conclude that the measure is contrary to the Convention in view of its effects on the facts of the case. This is true in particular where such measures affect fundamental civil and political rights, such as freedom of expression, the supervision over the protection of these rights having been the very purpose of the Court ’ s creation (see the dissenting opinion of Judges Ziemele , Sajó , Kalaydjieva , Vučinić and De Gaetano in Animal Defenders International v. the United Kingdom [GC], no. 48876/08 , ECHR 2013). It is in this respect that we see the case at hand as different, with the margin of appreciation clearly being wider than in freedom of expression cases. For us, the solution that the Court adopts is not so much about the general measure as such, it is about the character of the right concerned or an aspect thereof. The assessment of the general measure depends on the character of the right in issue. Furthermore, it is about the prejudice sustained by the applicant union by virtue of the application of the general measure. The right to strike is not absolute. There are already a number of limitations applicable in view of the general public interest. In the case at hand, we are even further from the core issue in that secondary or sympathy strikes are not necessarily or directly relevant to the rights or interests of those engaged in such strikes.

3. Given the nature of such strikes and the implications for economic - policy considerations, the issue is best dealt with as part of the ongoing dialogue between the specialised monitoring bodies in the field of social and labour rights. That kind of softer process allows the respondent State to continue examining its economic options. A judgment of the European Court of Human Rights finding a violation would have the effect of putting an abrupt end to such a process. However, it should be pointed out that if the very essence of the applicant union ’ s right to strike were affected, there would be no doubt as to what the Court ’ s decision would be.

CONCURRING OPINION OF JUDGE WOJTYCZEK

1. I fully agree with the view of the majority that in the present case the respondent State has not violated Article 11 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) . However, I disagree with the methodology of the interpretation of the Convention applied by the majority. In my view, it would have been more correct to say that Article 11 is not applicable in this case and that therefore there has been no violation of this provision.

2. The majority rightly invokes the Vienna Convention on the Law of Treaties (“the Vienna Convention”), which codifies the customary rules of treaty interpretation. It is important to remember that the Vienna Convention applies only to treaties concluded by States after its entry into force with regard to such States (Article 4). It is true that the Vienna Convention does not apply as such to the Convention. However, the customary rules as expressed in the Vienna Convention are applicable to it .

The point of departure for the interpretation in international law is the wording of the provision to be interpreted. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty. The interpreter also has to take into account the “internal” context of the treaty consisting of ( a ) the entire text (including the preamble and the annexes) ; ( b ) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty ; and ( c ) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty. The ordinary meaning of the terms used in the treaty has to be established in the light of its object and purpose. The interpretation should further take into account the “external” context consisting of ( a ) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions ; ( b ) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation ; and ( c ) any relevant rules of international law applicable in the relations between the parties. Finally, if necessary, it may be useful to have regard to supplementary means of interpretation, including the preparatory work on the treaty and the circumstances of its conclusion.

The exact meaning of Article 31 § 3 (c) of the Vienna Convention referring to “any relevant rules of international law applicable in the relations between the parties” is the subject of scholarly disputes. It has to be noted in this context that one of the aims of this provision is to ensure some degree of coherence within international law. Some scholars refer to the rule enshrined in this provision as the principle of systemic integration (see, for instance, M. Koskenniemi , “Fragmentation of i nternational l aw: d ifficulties a rising from the d iversification and e xpansion of i nternational l aw”, Report of the Study Group of the International Law Commission, United Nations, A/CN.4/L.482, pp. 173-205 , and C. McLachlan, “The Principle of Systemic Integration and Article 31(3)(c) of the Vienna Convention”, International and Comparative Law Quarterly , vol. 54 , 2005, pp. 279-320).

The reference to “external” international law may be particularly useful in two situations. First, if the exact meaning of a term or phrase is not clear, resorting to other pertinent rules of international law may be a useful tool for clarifying the meaning of the provision. Other relevant treaties may serve as an international legal dictionary (compare C. McLachlan, op. cit . , p. 315). In such a situation, one may legitimately take into account treaties binding only some of the parties to the treaty to be interpreted, as guidelines stemming from other treaties are in any event not binding for the interpreter.

There is also a second situation in which it is necessary to take into account other relevant rules of international law, namely where the treaty to be interpreted conflicts with other rules of international law. In such a situation the interpreter should try to find an interpretation which makes it possible to avoid or, at least, to minimise the conflict of rules.

Rules binding only some of the parties may be taken into account but they cannot be considered as a decisive argument for the interpretation of a treaty provision. On the contrary, a situation where a rule of international law is applicable to some of the States Parties to the Convention is an important argument, albeit not decisive, against aligning the interpretation of the Convention with that rule.

Article 31 § 3 (c) of the Vienna Convention sets up a rule of interpretation . It is mainly a tool for clarifying the meaning of ambiguous or obscure terms and phrases and not for extending the scope of treaty obligations irrespective of its wording. Article 31 § 3 (c) of the Vienna Convention may not be understood as an entitlement to align the meaning of a treaty with the content of other rules of international law, especially if those rules are not binding on all the parties to the treaty to be interpreted. In particular, this provision should not justify referring to rules that bind only some of the States Parties to the Convention in order to align its content with those rules, without duly taking into account the wording of the provisions under interpretation.

3. It should be stressed that the Convention establishes a minimum standard for a selective catalogue of rights. In this context, it is interesting to note the content of Article 53 of the Convention:

Safeguard for existing human rights

“Nothing in this Convention shall be construed as limiting or derogating from any of the human rights and fundamental freedoms which may be ensured under the laws of any High Contracting Party or under any other agreement to which it is a p arty.”

The Convention clearly envisages in this provision a situation in which different instruments may provide a higher level of protection than the Convention itself. Such a situation cannot be seen as an example of fragmentation, let alone of incoherence, of international law. The nature of the Convention as a minimum standard for a limited catalogue of rights limits the risk of contradictions with other treaties. A situation in which other treaties guarantee broader rights or offer a higher standard of protection of the same rights cannot be seen as a conflict of treaties. Nor does it change per se the scope of the rights protected under the Convention. While there is no doubt that the Convention has to be interpreted in the context of other rules of international law, the scope of its protection does not automatically align on the highest standard set by other rules of international law binding the Parties to the Convention.

It has to be stressed that the mandate of the European Court of Human Rights has been defined in a restrictive way by Article 19 of the Convention. The role of the Court is to ensure the observance of the engagements undertaken by the High Contracting Parties to the Convention and the Protocols thereto. Therefore the Court remains the guardian of a limited catalogue of rights as protected under the minimum standard set forth in the Convention and the additional P rotocols.

It is also necessary to bear in mind that human rights are interrelated in different ways. Quite often different human rights may collide in specific circumstances. In such situations, heightening the standard of protection of one right may lead to lowering the standard of protection of other fundamental human rights.

4. The majority cites the judgment in Demir and Baykara v. Turkey ([GC], no. 34503/97, ECHR 2008). In this judgment the Court stated, inter alia , as follows:

“78. The Court observes in this connection that in searching for common ground among the norms of international law it has never distinguished between sources of law according to whether or not they have been signed or ratified by the respondent State.

...

86. In this context, it is not necessary for the respondent State to have ratified the entire collection of instruments that are applicable in respect of the precise subject matter of the case concerned. It will be sufficient for the Court that the relevant international instruments denote a continuous evolution in the norms and principles applied in international law or in the domestic law of the majority of member States of the Council of Europe and show, in a precise area, that there is common ground in modern societies (see, mutatis mutandis , Marckx [ v. Belgium , 13 June 1979] , § 41 [, Series A no. 31] ).”

These passages triggered criticism from a significant number of legal scholars who questioned the methodology of interpretation applied in them . I share this criticism. Unlike consensus between the High Contracting Parties, a “continuous evolution in the norms and principles applied in international law” is not per se an argument for an extensive interpretation of the Convention. Furthermore, in my view the questions whether a specific treaty has been ratified by the respondent State and whether it binds all the High Contracting Parties to the Convention are of the utmost relevance for the interpretation of the latter. The fact that a treaty rule is not binding on at least one Contracting State is an argument against any kind of teleological reinterpretation of the Convention in accordance with this rule. In my view, it is illegitimate to transform treaty rules that bind only some members of the Council of Europe into an element of the Convention, unless unequivocal rules of treaty interpretation require otherwise. In any case, invoking arguments such as a “continuous evolution in the norms and principles applied in international law” or a “strong international trend” usually discloses the fact that there are no strong arguments based on international law to support the chosen interpretation. It is an unequivocal warning sign of judicial activism.

I regret that in the present case the majority decided to follow the flawed approach adopted in Demir and Baykara , cited above , consisting in aligning the Convention with some external rules of international law applicable to some of the Parties to the Convention, without even trying to analyse the wording of Article 11 of the Convention.

5. As pointed out above, the interpretation of a treaty begins with establishing the ordinary meaning of the terms and phrases used in the provisions to be interpreted. Article 11 § 1 of the Convention states that “[e] veryone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.” The wording of the provision does not suggest that it encompasses secondary industrial action (or sympathy strikes). Even assuming that there is a general agreement that the essence of the freedom to form and to join trade unions for the protection of one ’ s interests encompasses the right to strike, which itself may be legitimately disputed, it does not follow from this assumption that sympathy strikes are an element of trade - union freedom within the meaning of the Convention.

6. In the present case, the majority refers to different types of international legal materials ( C onventions of the International Labour Organization (ILO) , the European Social Charter and the Charter of Fundamental Rights of the European Union) labelled as “relevant international law”. When a judgment of an international court refers to “relevant international law”, the reader may legitimately expect an explanation as to why and in what respect the documents referred to in it are relevant for the resolution of the instant case. I regret that the majority has not found necessary to explain clearly the relevance of the international law referred to for the interpretation of Article 11 of the Convention. In my view, its relevance is limited.

I note that the Freedom of Association and Protection of the Right to Organise Convention (No. 87) has been ratified by forty-four European States which are Parties to the Convention. Three States (Andorra, Liechtenstein and Monaco) did not wish to be P arties to Convention No. 87 . Although it does not expressly guarantee the right to strike, different bodies set up to monitor the application of the ILO C onventions have consistently held that trade - union freedom encompasses the right to strike.

The majority quotes various documents issued by the bodies set up to monitor the application of the ILO Conventions (the Committee of Experts and the Committee on Freedom of Association). It has to be stressed that those documents do not state unequivocally that a general ban on secondary industrial action constitutes a violation of Convention No. 87. The Committee of Experts says only that “a general prohibition of sympathy strikes could lead to abuse” (emphasis added), pointing to a potential problem. The nature and scope of State obligations pertaining to sympathy strikes have not been clearly defined.

One of the most important instruments invoked by the majority is the European Social Charter. Article 6 of this treaty stipulates as follows:

“With a view to ensuring the effective exercise of the right to bargain collectively, the Contracting Parties undertake:

...

and recognise:

4. the right of workers and employers to collective action in cases of conflicts of interest, including the right to strike, subject to obligations that might arise out of collective agreements previously entered into.”

The European Social Charter has a specific character, as most of the undertakings are optional. In particular, each of the Contracting Parties to the Charter undertakes to consider itself bound by at least five of the following Articles of Part II of the Charter: Articles 1, 5, 6, 12, 13, 16 and 19. The States may choose not to be bound by Article 6 § 4 of the Charter. In fact, ten European States have chosen not to be bound by this provision. The standard set forth in it is not a universally recognised standard among European States. On the contrary, ten States do not wish to guarantee the right to strike under the European Social Charter.

I note further that the majority quotes the Charter of Fundamental Rights of the European Union. Article 51 of the Charter defines its scope of application in the following way:

“1. The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers and respecting the limits of the powers of the Union as conferred on it in the Treaties.

2. The Charter does not extend the field of application of Union law beyond the powers of the Union or establish any new power or task for the Union, or modify powers and tasks as defined in the Treaties.”

Legislation on the right to strike remains in principle within the scope of the powers of the European Union m ember States (see, in particular, Article 153 § 5 of the Treaty on the Functioning of the European Union). However, the fundamental freedoms on which the European Union is based may interfere and collide with the right to strike and therefore, according to the case-law of the Court of Justice of the European Union, may justify restrictions on the right to strike. Furthermore, under this case-law, trade unions may be held liable for strikes which interfere with the fundamental freedoms protected by European Union law (see, in particular, the judgment of the Court of Justice of the European Union of 11 December 2007 in Case C-438/05, International Transport Workers ’ Federation and Finnish Seamen ’ s Union v . Viking Line ABP and OÜ Viking Line E e sti ; and its judgment of 18 December 2007 in Case C-341/05, Laval un Partneri Ltd v . Svenska Byggnadsarbetareförbundet , Svenska Byggnadsarbetareförbundets avdelning 1, Byggettan and Svenska Elektrikerförbundet ). In any event, while European Union law should not violate the right to strike in so far as it is protected under the Charter, this instrument does not entitle the European Union to prevent its m ember States from imposing restrictions on the right to strike.

7. On the other hand, it is important to note that the right to strike is enshrined in the Covenant on Economic, Social and Political Rights which has been ratified by forty-six States Parties to the Convention. Article 8 § 1 (d) of this treaty guarantees “ [ t ] he right to strike provided that it is exercised in conformity with the laws of the particular country”. The wording of this provision stresses the wide margin of appreciation left to national legislatures when regulating the right to strike.

8. The interpretation of treaty provisions pertaining to social rights has to take into account the specific nature of those rights. States have devised specific mechanisms for monitoring the implementation of social rights without having to entrust the adjudication of disputes concerning social rights to international courts. States also make use of optional instruments which leave them some choice as to their undertakings, such as the European Social Charter. Some States have clearly expressed their reluctance to undertake obligations in the field of social rights. An extensive interpretation of existing treaties pertaining to social rights may have a chilling effect on those States when they consider entering into new treaties in this field.

The right to strike has further peculiarities. The interpretation of the scope of freedom of association under Convention No. 87 is not uncontroversial, as employers ’ organisations have contested the idea that the freedom to form trade unions encompasses the right to strike. It is important to bear in mind in this context that the right to strike may encroach on the human rights of other persons and have an impact on the national economy. Therefore, the interpretation of international treaty provisions pertaining to the right to strike should take into account the various conflicting rights and the legitimate private and public interests at stake. Similarly, national legislation implementing the right to strike has to achieve a proper balance between different rights and interests. Broadening the scope of protection of the right to strike may entail the narrowing of the protection of other fundamental human rights.

9. The majority in the present case states that the Court should not adopt an interpretation of the scope of freedom of association of trade unions that is much narrower than that which prevails in international law. I am not persuaded by this argument. Firstly, the scope of trade - union freedom may differ from one treaty to another even if the wording of the relevant provisions is similar. Secondly, as pointed out above, the nature and scope of State obligations pertaining to sympathy strikes have not been clearly defined in international law. Thirdly, the different treaty rules protecting the right to strike have not been accepted by all the forty-seven High Contracting Parties to the Convention.

The majority also invokes the fact that many European States have long accepted secondary industrial action as a lawful form of trade - union action. For my part, I note that some European States take the opposite view. Not only is there no European consensus on this issue but, moreover, one can observe a strong resistance to recognising sympathy strikes. In any event, the fact that a majority of States adopts a higher standard of protection of a right is not a sufficient argument for imposing this standard on a minority of States which rejects it.

10. To conclude, in my view, the analysis of international law does not support the opinion that Article 11 of the Convention should be interpreted in such a way as to encompass the right to sympathy strikes. To hold otherwise exposes the Court to the risk of being legitimately criticised for judicial activism.

[1] . Bold text used in the original.

[2] . Bold text used in the original.

[3] . That is, at a time when secondary action was merely restricted and not yet banned.

[4] . Bold and italics used in original.

[5] . Covering the then twenty-seven European Union member States as well as Croatia and Iceland. Published electronically at http://www.etui.org/Publications2/Reports/Strike-rules-in-the-EU27-and-beyond .

[6] . See the ECSR case-law database http://hudoc.esc.coe.int/esc2008/query.asp?language=en .