The present report was prepared on the basis of comments by Messrs. Matscher, Luchaire, Malinverni and Van Dijk; it was discussed within the Sub-Commission for the Protection of Minorities on 18 October 2001, and was subsequently adopted by the Commission at its 48^th Plenary Meeting held in Venice on 19-20 October 2001.

The concern of the “kin-States” for the fate of the persons belonging to their national communities/2/ (hereinafter referred to as “kin-minorities”) who are citizens of other countries (“the home-States”) and reside abroad is not a new phenomenon in international law.

The main tool which kin-States dispose of in this respect is the negotiation of multilateral or bilateral agreements aiming at the protection of their kin-minority, with the relevant home-States.

Provisions to the extent that the kin-State cares for its kin-minorities abroad and fosters its links with them were indeed included in a number of new Constitutions dating back to those years.

For example, Article 6 of the Hungarian Constitution (revised in 1989) provides:

Article 7 of the Romanian Constitution (1991) reads:

Article 5 of the Slovenian Constitution (1991) provides, inter alia, that:

Article 49 of the Constitution of the “Former Yugoslav Republic of Macedonia” (1991) stipulates that:

Article 10 of the Croatian Constitution (1991) provides that:

Article 12 of the Ukrainian Constitution (1996) similarly provides that

Article 6 of the 1997 Polish Constitution provides:

Article 7a of the Slovak Constitution (amended in 2001) provides:

About a hundred new and existing bilateral and regional co-operation agreements on, inter alia, minority protection were included in the Pact.

The question of minorities’ rights was linked with the principles of the inviolability of frontiers and territorial integrity.

The States participating in the Pact committed themselves, in the Final Declaration, to compliance with the principles of the OSCE. In the event of problems over observance of the agreements, they would rely on the existing OSCE institutions and procedures for preventing conflict and settling disputes peacefully. These include the possibility of consulting the High Commissioner on National Minorities (Article 15 of the Final Declaration) and that of referring disputes concerning the interpretation or implementation of the treaties to the International Conciliation and Arbitration Court (Article 16 of the Final Declaration).

B/ The bilateral approach to minority protection

In certain cases, the friendship treaties refer to pre-existing bilateral instruments specifically concerning minorities (for example, the co-operation Treaty between Hungary and Slovenia follows the Convention on providing special rights for the Slovenian minority living in the Republic of Hungary and for the Hungarian minority living in the Republic of Slovenia of 6 November 1992, and the Treaty between Hungary and Ukraine on the Foundations of Good Neighbourly Relations and Co-operation follows the Declaration on the principles of co-operation between the Republic of Hungary and the Ukrainian Soviet Socialist Republic in guaranteeing the rights of national minorities of 31 May 1991.)

In other cases, a specific instrument on minorities follows in time the bilateral treaty; the Treaty between Hungary and Croatia on Friendly Relations and Cooperation, for instance, was later complemented by a Convention on the protection of the Hungarian minority in the Republic of Croatia and the Croatian minority in the Republic of Hungary (5 April 1995). Similarly, the Declaration on the principles guiding the co-operation between the Republic of Hungary and the Russian Federation regarding the guarantee of the rights of national minorities of 11 November 1992 follows and refers to the Treaty between the Republic of Hungary and the Russian Soviet Federative Socialist Republic on friendly relations and co-operation of 6 December 1991.

These treaties and conventions usually contain mutual commitments to respect international norms and principles regarding national minorities. They often incorporate soft law provisions, such as the Council of Europe’s Parliamentary Assembly’s Recommendation no. 1201 (1993) and the CSCE Copenhagen Document (1990), and, by doing so, give them binding effect in their mutual relations make them binding.

A detailed comparative analysis of the content of these treaties goes far beyond the object of the present studydocument. It is sufficient for our purposes to point out that they provide for certain “classic” core rights (right to identity; linguistic rights; cultural rights; education rights; rights related to the use of the media; freedom of expression and association; freedom of religion; right to participate in decision-making processes). Sometimes, more rarely, other rights such as that to trans-frontier contacts and preservation of the architectural heritage, are included. Certain treaties grant collective rights or certain forms of autonomy. Further, some of them emphasise the duties of the persons belonging to the minorities in respect of their home-States.

These treaties are, to a greater or lesser degree, framework treaties: they need to be implemented through specific pieces of legislation or through intergovernmental agreements on specific matters.

There is no explicit sanction for the failure by one Party to co-operate in implementing a treaty.

Insofar as most of these treaties have been included in the Pact on Stability, any State could apply to the International Conciliation and Arbitration Court, seeking the solution to a dispute or the interpretation of a provision of the bilateral treaty in question. In practice, however, this has never been attempted. Furthermore, the assistance of the OSCE High Commissioner on National Minorities could be sought in pursuance of Article 15 of the Final Declaration of the Pact on Stability, but never was.

In addition, inasmuch as the treaties in question embody provisions of the Framework Convention, their implementation falls, if only indirectly, within the scope of competence of the relevant Advisory Committee and of the Committee of Ministers of the Council of Europe; indeed, States have submitted, though only indirectly, detailed information on these matters in their reports.

As regards domestic remedies, the theoretical possibility , in countries whose constitutional system allows treaty rules to be directly applicable in domestic law, of bringing before a domestic court the matter of the failure to respect a self-executing treaty has not been used so far (and does not appear very likely, due in particular to the little awareness of this possibility amongst the legal practitioners).

It follows that, as things stand nowadays, if a party refuses to participate in bilateral talks on the implementation of a treaty, only political pressure coming from either the other party or the international community can persuade it to do so.

The following laws are worth remembering in this context:

• The Act on Expatriate Slovaks and changing and complementing some laws - no. 70 of 14 February 1997 (Slovakia) (hereinafter: “the Slovak Law” or SL)

• The Law regarding the support granted to the Romanian communities from all over the world, 15 July 1998 (Romania) (hereinafter: “the Romanian Law” or RL)

• The Federal Law on the State policy of the Russian Federation in respect of the compatriots abroad, March 1999 (Russian Federation) (hereinafter: “the Russian Law” or RuL)

• The Law for the Bulgarians living outside the Republic of Bulgaria, 11 April 2000 (Bulgaria) (hereinafter: the Bulgarian law” or BL)

• The Law on the Measures in favour of the Italian Minority in Slovenia and Croatia, 21 March 2001 no. 73 (extending the validity of Article 14 § 2 of the Provisions for the development of economic activities and international cooperation of the Region Friuli-Venezia Giulia, the province of Belluno and the neighbouring areas, 9 January 1991, no. 19) (Italy) (hereinafter: “the Italian law” or IL)

• The Act on Hungarians living in neighbouring countries, 19 June 2001 (to enter into force on 1 January 2002) (Hungary) (hereinafter: “the Hungarian law” or HL)

The following are also worth noticing:

• (The Rresolution of the Slovenian Parliament on the status and situation of the Slovenian minorities living in neighbouring countries and the duties of the Slovenian State and other bodies in this respect, of 1994)27 June 1996)

•The Joint Ministerial Decision no. 4000/3/10/e of the Ministers of the Interior, of Defence, of Foreign Affairs, of Labour and of Public Order of 15-29 April 1998 on the Conditions, Duration and Procedure for the delivery of a Special Identity Card to Albanian citizens of Greek origin (Greece) (hereinafter: “the Greek ministerial decision” or GMD)

The Romanian and Italian laws confine themselves to referring to their “communities” or “minorities” living outside of their respective territories. The other laws under examination, instead, set out in detail the criteria that are to be met in order for an individual to fall within their ambit of application. These criteria are as follows:

This criterion flows from the very same ratio of these laws and is therefore common to them all (with the partial exception of the Russian one). It is not always explicitly set out (see the already mentioned Romanian and Italian laws; the Bulgarian law does not specify this in its Article 2, but it does so in the second chapter). The Hungarian act specifies that Hungarian nationality must have been lost for reasons other that by voluntary renunciation.

While the Italian and Romanian laws do not explicitly set out any criteria for establishing the national background, the other laws do, in greater or lesser detail.

Under the Slovak law, the Slovak “ethnic origin” derives from a “direct ancestor up to the third generation” (article 2 § 3 SL). For the Bulgarian law, it is necessary to have at least one ascendant of Bulgarian origin (article 2 BL). Under the Hungarian law, it is a Hungarian “national” he or she who so declares (article 1 HL). For the Russians, the compatriots are “those who share a common language, religion, culture, traditions and customs, as well as their direct descendants” (article 1 RuL).

As to the proof of the national background, the Slovak law requires a “supporting document” which may consist of a birth certificate, a baptism certificate, a statement by the registry office, a “proof of nationality” or a permanent residence permit; failing these, a written testimony of a Slovak countryman organisation abroad or the testimony of at least two fellow Slovak expatriates is required (article 2 § 4 SL). The Bulgarian law requires a document issued by a foreign authority or by an association of Bulgarians abroad or by the Bulgarian Orthodox Church; failing this, the Bulgarian background can be proved through judicial means (article 3 BL). The Russian law requires, besides the “free choice” of the individual, “supporting documents” of the previous Soviet or Russian citizenship or of the previous residence on the territory of Russia/URSS/RSFSR/FdR, or of the direct descent from immigrants (article 4 RuL).

This requirement is contained in the Hungarian Law (Article 1 § 1). In fact, the obtainment of a permit of permanent stay in Hungary constitutes a ground for withdrawing the “Certificate of Hungarian Nationality” (Article 21 § 3 (b) HL). The Slovak law, instead, encourages expatriates to apply for permanent residence in Slovakia (Article 5 § 3 SL). The Greek special identity card amounts to a permit of stay of three years (Article 3 GMD).

Under the Slovak law, the “expatriate” must have at least a passive knowledge of the Slovak language, which must be certified by the results of his/her activities, or by the testimony of the Slovak organisation of his/her place of residence or the testimony of at least two fellow expatriates (article 2 §§ 6, 7 SL).

The Slovak law requires a basic knowledge of the Slovak culture, to be proved in the same way as the linguistic knowledge (see above). The Bulgarian law requires a “Bulgarian national awareness” (article 2 BL).

Under the Hungarian law, cohabiting spouses and minor children are entitled to receive the benefits under the Act (Article 1 § 2 HL). The Greek ministerial decision extends the benefits for the Albanians of Greek origin to their spouses and descendants who can prove their kinship through official documents (Article 1 § 2 GMD). The benefits under the Slovak law are extended to the Expatriate’s children under the age of 15 who are mentioned in the Expatriate Card (Article 4 § 1 SL)

The Hungarian, Slovak and Russian laws subordinate entitlement to specific benefits to the holding of a particular document. So does the Greek ministerial decision.

The nature of this document is not always the same.

Under the Greek regulation, it is (and is called) an identity card (bearing a photograph and the fingerprints of its holder), issued for a period of three years (renewable); it also functions as a permit of stay and a work permit (see the relevant statement/circular of the Greek Ministry of Public Order).

The Slovak “Expatriate Card”, which is issued for an indefinite period of time, contains the personal data of the holder, as well as his permanent address (the data of minor children can also be included, at the request of the person concerned, insofar as this is compatible with the applicable international treaties). This card does not amount to an identity card in that it is only valid when used together with a valid identification document (Article 4 § 2 SL) issued in the home-State. The holder of the card, however, is admitted to the Slovak territory without written invitation, visa and permit of stay.

The “Certificate of Hungarian Nationality” – which is issued for a period of five years or until the holder turns 18, or for an indefinite time if the holder is over sixty - bears a photograph of its holder and contains all his personal data (article 21 § 5 HL).

The Russian law prescribes that belonging to the category of “compatriots” can be proved – as well as through a Russian passport for Russian citizens or those holding a double nationality - through a certificate issued by the diplomatic or consular representations of the Russian Federation or by the Russian competent authorities (article 3 RuL). This certificate, unaccompanied by a photograph of its holder, does not amount to an identity card.

As regards the procedure for issuing the documents in question, they are issued by the authorities of the kin-State: a “central public administration body designated by the Hungarian Government (article 19 § 2 HL; the Slovak Ministry of Foreign Affairs (article 3 § 1 SL); the “competent authorities” or the Russian diplomatic missions or consulates abroad (article 3 RuL); the police department responsible for foreigners (article 1 GMD).

The kin-States’ consulates or embassies on the territories of the home-States may have a role in the procedure. Under article 1 of the Slovak law, the Slovak missions or consular offices may receive applications for the Expatriate Card, which they forward to the Ministry of Foreign Affairs for decision. Russian diplomatic missions or consulates can issue the certificate proving Russian origin (article 3 RuL). The Greek consular authorities do not and cannot play any role, given that the Greek special identity card can only be delivered to those who find themselves on the Greek territory (article 1 § 1 GMD).

A quite different role is assigned to such organisations under the Slovak law. Pursuant to article 2 § 5 SL, they can testify that an individual belongs to the Slovak minority in case he or she cannot provide the formal documents listed in article 2 § 4 SL. It must be remembered in this context that the Slovak law provides for a clear criterion for assessing national origin. Similarly, the Bulgarian law (article 3 BL) provides for the possibility of proving one’s Bulgarian origin through a statement of an association of Bulgarians abroad; the law, however, specifies what needs to be proved, i.e. to have at least on Bulgarian ascendant.

These benefits usually consist of: scholarships to students for the pursuit of their studies in the kin-State; reduction or exemption from fees for the use of cultural and educational facilities (such as museums, libraries and archives); support to educational institutions teaching in the kin-language in the home-States; training for teachers in the kin-language in the home-States (article 6 § 1 SL; article 17 RuL; articles 9 and 10 BL; article 7 BL; articles 4 and 9-14 HL), mutual recognition of academic diplomas (see the numerous agreements between Austria and Italy); access to academic career (articles 2 and 4 § 2 AL).

Article 10 § 1 of the Hungarian Law further provides for the granting of scholarships to students belonging to the kin-minority pursuing any kind of studies in institutions for higher education – irrespective of the language or curriculum - in the home-States.

Article 18 of the Hungarian Law sets out the bases for the assistance by Hungary of organisations operating abroad and promoting the knowledge and preservation of the Hungarian language, literature and cultural heritage.

Under Article 7 of the Hungarian Law, workers holding the Certificate of Hungarian Nationality are allowed to contribute to the health insurance and pension schemes. They are also entitled to immediate medical assistance in Hungary on the basis of bilateral social security agreements. Article 2 of the Romanian law refers to the possibility for members of Romanian communities to receive individual aid in special medical cases. Slovak expatriates may request exemption from Social Security payments abroad if they meet the conditions for receiving their rights on Slovak territory (article 6 § 1 (d)).

They consist of special rates for those who travel to or within the territory of the kin-State (see article 8 HL; see also article 6 § 3 SL which provides for special rates for retired, disabled or elderly expatriates).

Under the Slovak law, job-seekers holding a Slovak Expatriate Card are not required to apply for a work permit or for permanent residence in Slovakia (article 6 (b) SL). Under the Hungarian law, work permits can exceptionally be granted to kin-foreigners for a duration of three months without prior assessment of the needs of the labour market (article 15 HL). More, kin-foreigners may apply for reimbursement of the costs incurred for meeting the legal conditions for employment (article 16 HL).

Under the Slovak law, holders of an Expatriate Card wishing to enter the territory of Slovakia do not need any visa or invitation, insofar as this is possible under the applicable international agreements (article 5 § 1 SL). Under Article 5 of the Austrian Law, South Tyroleans as defined in the law do not need visas in order to stay in Austria.

Slovak expatriates are admitted to stay for a long period on Slovak territory by virtue of their Expatriate Cards (article 5 § 2 SL). The Greek Special Identity Card amounts to a permit of stay for the duration of its validity (up to three years, renewable) (articles 1 and 3 GMD).

Bulgarians are entitled to a special regime of costs relating to their stay or settling down on the Bulgarian territory (article 6 § 2 BL). The Romanian law provides the possibility for students wishing to pursue their studies in Romania to benefit from free accommodation in student hostels for the duration of their stay (other forms of support may be granted from the Government) (article 9 RL).

Under Article 6 § 2 of the Slovak law, expatriates have the right to own and acquire real estate. Under the Bulgarian Law, kin-foreigners can participate in privatisation, be reinstated in their property, inherit real estate (article 8 BL).

Under the Russian law (article 11 RuL), “compatriots” may be promptly granted Russian citizenship upon a simple request. Under the Slovak law, “expatriates” may apply for Slovak citizenship for outstanding personality reasons (article 6 § 1 c) SL).

Benefits are normally granted to kin-foreigners when they find themselves on the territory of the kin-State.

Under the Hungarian law, certain benefits are available in the home-State (see article 10 HL on benefits for students of public education institutions teaching in Hungarian in the neighbouring countries or of “any higher education institution”; article 12 HL on benefits to Hungarian teachers living abroad; article 13 HL: Education abroad in affiliated departments”; article 14 HL on “Educational assistance available in the native country”; article 18 HL on assistance to organisations operating abroad).

The paramount importance of an adequate and effective protection of national minorities as a particular aspect of the protection of human rights and fundamental freedoms and also in order to promote stability, democratic security and peace in Europe has been repeatedly underlined and emphasised. The full implementation of the international agreements on this matter – in primis the Framework Convention for the Protection of National Minorities, and also the Charter for Regional or Minority Languages as well as, be it less specifically, the European Convention on Human Rights – has become a priority for all the member States of the Council of Europe.

Against this background, the emerging of new and original forms of minority protection, particularly by the kin-States, constitutes a positive trend insofar as they can contribute to the realisation of this goal.towards the satisfactorily solution of this key problem.

The practice of stipulating bilateral treaties in this field has proved effective and deserves continuing efforts and attention. Treaties on friendly co-operation or on minority protection is are already the object of encouragement and assistance as well as of close scrutiny by the international community.

.

The more recent tendency of kin-States to enact domestic legislation or regulations conferring special rights to their kin-minorities had not, until very recently, attracted particular attention, nor aroused much, if any at all, interest in the international community. No supervision or co-ordination of the laws and regulations in question has so far been sought or attempted. Yet, thepassionate and at times virulent campaign surrounding the adoption of the Hungarian Act on Hungarians living in neighbouring countries shows the impellent necessity of addressing the question of the compatibility of such laws and regulations with international law and with the European standards on minority protection.

In the Commission’s opinion, the possibility for States to adopt unilateral measures on the protection of their kin-minorities, irrespective of whether they live in neighbouring or in other countries, is conditional upon the respect of the following principles: a) the territorial sovereignty of States; b) pacta sunt servanda; c) friendly relations amongst States, and d) the respect of human rights and fundamental freedoms, in particular the prohibition of discrimination.

a. The principle of territorial sovereignty of States

This implies, in principle, jurisdiction over all persons, property and activities in their territory, and in their internal waters, territorial sea and the air space above their national territory. No other State or international organisation can exercise jurisdiction in the territory of a State without the latter’s consent. Public international law however confers specific powers to States as regards laws related to their embassies, ships or nationals abroad.

Legislative and administrative acts (as well as judicial ones) are emanations of that sovereign jurisdiction: their natural addressees are therefore the relevant citizensinhabitants, and the natural place of application is the national territory.

A first question arises in this context: can the mere adoption of legislationan act with extraterritorial effects, per se, be seen as an interference with the internal affairs of the other State or States concerned and therefore an infringement of the principle of territorial sovereignty of states?

In order to provide an exhaustive answer, it is necessary to make a distinction, as regards the meaning of “extraterritoriality”, between the effects of a State’s legislation acts on foreign citizens, within that State’s territory or abroad, and the exercise of a State’s powers outside that State’s borders.

i. The effects of a State’s legislationacts on foreign citizens

The mere fact that the addressees of a piece of legislationn act are foreign citizens does not, in the Commission’s opinion, constitute an infringement of the principle of territorial sovereignty. Indeed, there are numerous examples of legislative acts which consider foreign citizenship, not of a specific State but in general (for instance in private international law, regarding the penal jurisdiction of the State etc.), as “connecting points”. All these acts are in conformity with the general principles of international law.

A State can legitimately issue laws or regulationsan act concerning foreign citizens without seeking the prior consent of the relevant States of citizenship, as long as the effects of these laws or regulationsis act are to take place within its borders only. For example, a State can unilaterally decide to grant a certain number of scholarships to meritorious foreign students who wish to pursue their studies in the universities of that State.

When the lawact specifically aims at deployings its effects on foreign citizens in a foreign countryabroad, its legitimacy is not so straightforward. It is not conceivabledifficult to consider, in fact, that the home-State of the individuals concerned should not have a word to say on the matter.

/25/ See Article 2 § 2 of the Cultural Convention reads: “Each Contracting Party shall, insofar as may be possible, (…) endeavour to promote the study of its language or languages, history and civilisation in the territory of the other Contracting Parties and grant facilities to the nationals of those Parties to pursue such studies in its territories”

Further, when a kin-State takes unilateral measures on the preferential treatment of its kin-minorities in a particular home-State, the latter may presume the consent of the said kin-State to similar measures concerning its citizens.

In fields, which are not covered by treaties or international customs, instead, the consent of the home-States affected by the kin-State’s measures should be explicit. So, to cite an example, if a State unilaterally decided to grant scholarships to foreign students of its kin-minorities irrespective of the link of their studies with the kin-State itself, this decision might be considered as interfering with the relevant home-States’ internal affairs (their educational policies, for example).

ii. The exercise of State powers outside the national borders

The grant by a State of administrative, quasi-official functions to non-governmental associations registered in another country constitutes an indirect form of state power: as such, it is not permissible unless specifically allowed.

This grant appears to be particularly problematic when these functions are neither allowed nor regulated under the law of the home-State. Under these circumstances, in fact, in performing them the associations in question would not be subjected to any effective legal control: neither from the authorities of the home-State would have jurisdiction but might not recognise the bases for these acts, for the above-stated reason that the latter se acts are not foreseen in that legal system; , nor from the kin-State, despite having provided for the bases for issuing the acts in question, would lack jurisdiction thereover, given that the associations y are registered and operate foreign associations acting abroad. This is even more applicable, when the conditions and limits of the exercise of this power are not clearly enunciated in the originating law.

In the latter respect, and with reference to the need expressed in various of the laws under examination to obtain proof of the national background of foreigners seeking access to the benefits provided to kin-minorities, the Commission considers that it is necessary preferable (even if it is not required by international law) that the relevant legislation set out the exact criteria that must be employed in the assessment of the national background. This indication, in fact, would prevent consulates from being given discretionary power that, being exempted from any substantial, not merely formal judicial review, would risk becoming arbitrary. In this respect, the Commission wishes to refer, mutatis mutandis, to the Framework Convention, which, while enshrining the principle of the individual’s free choice as to affiliation to a minority, does not prevent States from requiring the fulfilment of certain criteria when it comes to granting privileges to the persons belonging to that minority. In other words, the personal choice of the individual is a necessary element, but not a sufficient one for entitlement to specific privileges.

Similar considerations pertain as concerns the associations of kin-minorities abroad. In the Commission’s view, a role of these associations cannot be excluded, if they are only required by the kin-States to provide information on precise, legally determined facts, in the absence of other supporting documents or material or if they are only entrusted with giving a non-binding informal recommendation for the consular authorities of the kin-State. For example, they may provide a statement about the circumstance that the grandfather of an individual was a citizen of the kin-State, in a case where any formal documents were missing.

b. The principle that pacta sunt servanda

Legislation or regulations on the preferential treatment of kin-minorities should therefore not touch upon areas demonstrably pre-empted already covered by existing bilateral treaties, unless of course the home-State concerned had been consulted and had approved of this step or had implicitly – but unambiguously - accepted it, by not raising objections.

Similar considerations are valid in the case that a given area is not covered by specific rules of an existing treaty.

c. The principle of friendly neighbourly relations

The framework of bilateral treaties connecting Central and Eastern European States draws from the principle of good neighbourliness and holds it as the main purpose of the treaties themselves.

The obligation for States to work towards the achievement of friendly inter-state relations derives also from a more general principle; Article 2 of the Framework Convention promotes the principles of good neighbourliness, friendly relations and co-operation among States. Friendly inter-state relations are indeed nowadays unanimously considered as a precondition for peace and stability in Europe.

States should accordingly abstain from taking unilateral measures, which would risk compromising the climate of co-operation with other States.

The legislation under examination touches upon sensitive areas for the reasons analysed above. One specificparticular aspect thereof raises issues that deserve close examination: the issuing by the kin-State of a document that proves that its holder belongs to the kin-minority, and, in particular, the modalities of the issuing of the relevant documents.

This document, in its different forms (see above), has been justified by the States that have introduced it as a means to simplify of the administrative steps that the individual needs to take in order to have access to the benefits provided for by the legislation concerned.

To the extent that it allows easier access to these benefits, the Commission finds that this document can prove useful. However, it observes that in a number of countries this document has the characteristics of an identity document: it contains a photograph of its holder and all of his/her personal data. It makes reference to the national background of its holder. It is highly likely that the holders of these documents will use them as identity cards at least on the territory of the kin-State.

In such form, this document therefore creates a political bond between these foreigners and their kin-State. Such a bond has been an understandable cause of concern for the kinhome-States, which, in the Commission’s opinion, should have been consulted prior to the adoption of any measure aimed at creating the documents in question.

In order to be used solely as a tool of administrative simplification, the Commission considers that the document should be a mere proof of entitlement to the services provided for under a specified law or regulation. It should not aim at establishing a political bond between its holder and the kin-State and should not substitute for an identity document issued by the authorities of the home-State.

d. The respect of human rights and fundamental freedoms. The prohibition of discrimination.

The legislation and regulations that are the object of the present study aim at conferring a preferential treatment to certain individuals, i.e. foreign citizens with a specific national background. They thus create a difference in treatment (between these individuals and the citizens of the kin-State; between them and the other citizens of the home-State; between them and foreigners belonging to other minorities), which could constitute discrimination – based on essentially ethnic reasons – and be in breach of the principle of non-discrimination outlined above.

The discrimination must be invoked in relation to a right guaranteed by the Convention. Not all the benefits granted by the legislation under consideration refer, at least prima facie, to guaranteed rights. Some ECHR provisions could be pertinent: in primis Article 2 of the First Protocol; possibly, Article 8 of the Convention and Article 1 of the First Protocol. However, it must be said in this respect that it is hard to predict whether it would be possible to refer an arguable claim based on the legislation in question to the European Court of Human Rights: the latter, in fact, never examines the compatibility with the Convention provisions of a piece of legislation as such, but takes into account the particular circumstances of the case in relation to the concrete situation of the applicant

In this respect, the Commission finds it appropriate to distinguish, as regards the nature of the benefits granted by the legislation in question, between those relating to education and culture and the others.

Insofar as the first are concerned, the differential treatment they engender may be justified by the legitimate aim of fostering the cultural links of the targeted population with population of the kin-State. However, in order to be acceptable, the preferences accorded must be genuinely linked with the culture of the State, and proportionate. In the Commission’s view, for instance, the justification of a grant of educational benefits on the basis of purely ethnic criteria, independent of the nature of the studies pursued by the individual in question, would not be straightforward.

In fields other than education and culture, the Commission considers that preferential treatment might be granted only in exceptional cases, and when it is shown to pursue the genuine aim of maintaining the links with the kin-States and to be proportionate to that aim (for example, when the preference concerns access to benefits which are at any rate available to other foreign citizens who do not have the national background of the kin-State).

E. Conclusions

Responsibility for minority protection lies primarily with the home-States. The Commission notes that kin-States also play a role in the protection and preservation of their kin-minorities, aiming at ensuring that their genuine linguistic and cultural links remain strong. Europe has developed as a cultural unity based on a diversity of interconnected languages and cultural traditions; cultural diversity constitutes a richness, and acceptance of this diversity is a precondition to peace and stability in Europe.

The Commission considers, however, that respect for the existing framework of minority protection must be held as a priority. In this field, multilateral and bilateral treaties have been stipulated under the umbrella of European initiatives. The effectiveness of the treaty approach could be undermined, if these treaties were not interpreted and implemented in good faith in the light of the principle of good neighbourly relations between States.

The adoption by States of unilateral measures granting benefits to the persons belonging to their kin-minorities, which in the Commission's opinion does not have sufficient diuturnitas to have become an international custom, is only legitimate if the principles of territorial sovereignty of States, pacta sunt servanda, friendly relations amongst States and the respect of human rights and fundamental freedoms, in particular the prohibition of discrimination, are respected.

Respect for these principles would seem to require that certain features of the measures in question be respected, in particular:

• A State may issue acts concerning foreign citizens inasmuch as the effects of these acts are to take place within its borders.

• When these acts aim at deploying their effects on foreign citizens abroad, in fields that are not covered by treaties or international customs allowing the kin-State to assume the consent of the relevant home-states, such consent should be sought prior to the implementation of any measure.

• No quasi-official function may be assigned by a State to non-governmental associations registered in another State. Any form of certification in situ should be obtained through the consular authorities within the limits of their commonly accepted attributions. The laws or regulations in question should preferably list the exact criteria for falling within their scope of application. Associations could provide information concerning these criteria in the absence of formal supporting documents.

• Unilateral measures on the preferential treatment of kin-minorities should not touch upon areas demonstrably pre-empted by bilateral treaties without the express consent or the implicit but unambiguous acceptance of the home-State. In case of disputes on the implementation or interpretation of bilateral treaties, all the existing procedures for settling the dispute must be used in good faith, and such unilateral measures can only be taken by the kin-State if and after these procedures prove ineffective.

• An administrative document issued by the kin-State may only certify the entitlement of its bearer to the benefits provided for under the applicable laws and regulations.

• Preferential treatment may be granted to persons belonging to kin-minorities in the fields of education and culture, insofar as it pursues the legitimate aim of fostering cultural links and is proportionate to that aim.

• Preferential treatment can not be granted in fields other than education and culture, save in exceptional cases and if it is shown to pursue a legitimate aim and to be proportionate to that aim.

A. Historical background

B. The bilateral approach to minority protection

C. Domestic legislation on the protection of kin-minorities: analysis

D. Assessment of the compatibility of the domestic legislation on the preferential treatment of kin-minorities with the European standards and with the norms and principles of international law

a. The principle of territorial sovereignty (non-intervention in other States’ internal affairs)

i. The effects of a State’s acts on foreign citizens

ii. The exercise of State powers outside the national borders

b. The principle of pacta sunt servanda

c. The principle of friendly neighbourhood relations

d. The respect of human rights and fundamental freedoms. The prohibition of discrimination