- 40 107. Concerning the text of Article 22 of CERD, the Parties expressed divergent views on
the meaning of the word “or” in the phrase “not settled by negotiation or by the procedures
expressly provided for in this Convention”. The Court notes that the conjunction “or” appearing
between “negotiation” and the “procedures expressly provided for in this Convention” is part of a
clause which is introduced by the word “not”, and thus formulated in the negative. While the
conjunction “or” should generally be interpreted disjunctively if it appears as part of an affirmative
clause, the same view cannot necessarily be taken when the same conjunction is part of a negative
clause. Article 22 is an example of the latter. It follows that, in the relevant part of Article 22 of
CERD, the conjunction “or” may have either disjunctive or conjunctive meaning. The Court
therefore is of the view that while the word “or” may be interpreted disjunctively and envisage
alternative procedural preconditions, this is not the only possible interpretation based on the text of
Article 22.
108. Article 22 of CERD must be interpreted in its context. Article 22 refers to two
preconditions, namely negotiation and the procedure before the CERD Committee governed by
Articles 11 to 13 of the Convention. Article 11, paragraph 1, of CERD envisages that, if a State
party considers that another State party “is not giving effect to the provisions of [the] Convention,
it may bring the matter to the attention of the [CERD] Committee”; the CERD Committee “shall
then transmit the communication to the State Party concerned”, which, within three months, “shall
submit to the Committee written explanations or statements clarifying the matter and the remedy, if
any, that may have been taken”. Under Article 11, paragraph 2, a State has the right to refer the
matter back to the CERD Committee through a second communication “[i]f the matter is not
adjusted to the satisfaction of both parties, either by bilateral negotiations or by any other procedure
open to them, within six months after the receipt by the receiving State of the initial
communication”.
109. Pursuant to Article 12, paragraph 1 (a), of CERD, after the CERD Committee has
obtained the necessary information, its chairperson shall appoint an ad hoc Conciliation
Commission, the good offices of which shall be made available to the States concerned “with a
view to an amicable solution of the matter”. Article 13, paragraph 1, provides that, when the
Commission has fully considered the matter, it shall submit to the chairperson of the
CERD Committee a report containing “such recommendations as it may think proper for the
amicable solution of the dispute”. Pursuant to Article 13, paragraph 2, the States concerned, within
three months of receiving such recommendations from the chairperson of the Committee, shall
inform the chairperson as to “whether or not they accept the recommendations contained in the
report of the Commission”. The references to the “amicable solution” of the dispute and to the
States’ communication of acceptance of the Conciliation Commission’s recommendations indicate,
in the Court’s view, that the objective of the CERD Committee procedure is for the States
concerned to reach an agreed settlement of their dispute.
110. The Court therefore considers that “negotiation” and the “procedures expressly
provided for in [the] Convention” are two means to achieve the same objective, namely to settle a
dispute by agreement. Both negotiation and the CERD Committee procedure rest on the States
parties’ willingness to seek an agreed settlement of their dispute. It follows that should negotiation
and the CERD Committee procedure be considered cumulative, States would have to try to
negotiate an agreed solution to their dispute and, after negotiation has not been successful, take the
matter before the CERD Committee for further negotiation, again in order to reach an agreed